Citation Nr: 1343334 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 06-02 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a left shoulder disorder, to include as secondary to the service-connected paranoid schizophrenia. 2. Entitlement to service connection for a right shoulder disorder, to include as secondary to the service-connected paranoid schizophrenia. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1971 to December 1971 and from November 1973 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the VA Regional Office (RO) in Milwaukee, Wisconsin. Due to the location of the Veteran's current residence, jurisdiction of the appeal is with the RO in Chicago, Illinois. The case was remanded in March 2010 to comply with VA's duties to notify and assist; in June 2012 to obtain additional treatment records and afford the Veteran a VA examination; and in September 2013 for consideration of his appeal under the applicable regulations. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. A left shoulder disorder was not present during service, arthritis was not manifest within one year of discharge from service and a currently diagnosed left shoulder disorder did not develop as a result of any incident during service, including the service-connected paranoid schizophrenia. 2. A right shoulder disorder was not present during service, arthritis was not manifest within one year of discharge from service and a currently diagnosed right shoulder disorder did not develop as a result of any incident during service, including the service-connected paranoid schizophrenia. CONCLUSIONS OF LAW 1. A left shoulder disorder was not incurred or aggravated in service, and is not proximately due to or the result of the service-connected paranoid schizophrenia. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2013); 38 C.F.R. § 3.310 (2006). 2. A right shoulder disorder was not incurred or aggravated in service, and is not proximately due to or the result of the service-connected paranoid schizophrenia. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2013); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in a letters dated in October 2004, April 2010 and January 2012 regarding the type of evidence necessary to establish his claims. He was instructed how to establish service connection on both direct and secondary bases. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. A November 2006 letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained most of the Veteran's service treatment records (STRs), post-service medical records, and also secured an examination in furtherance of his claims. His complete STRs from his second period of service may not be of record. The Louisiana National Guard provided what requested records they had in 2002; subsequent requests during this appeal received negative responses. The Veteran was apprised in March 2012 of the negative response to the records requests. In cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. See Russo v. Brown, 9 Vet.App. 46 (1996). Additionally, attempts were made to obtain the Veteran's Social Security Administration (SSA) records; a negative response was received in March 2012. The Veteran was informed of such response also in March 2012. The Appeals Management Center (AMC) also attempted to obtain private treatment records and VA records identified by the Veteran; while many records were obtained, negative responses were received by some providers. An additional letter in March 2012 informed the Veteran of the negative responses. A pertinent VA examination was obtained in August 2012. 38 C.F.R. § 3.159(c)(4). The VA examination obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition (e.g., arthritis) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases (e.g., arthritis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2013). Furthermore, any disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). In this regard, the Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of this appeal. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran contends that he has left and right shoulder disorders that are related to his military service, to include being secondary to his service-connected paranoid schizophrenia. Regarding his right shoulder, he contends that an in-service injury sustained in a motor vehicle accident resulted in a current disorder. See, e.g., July 2004 statement. A review of the Veteran's STRs shows that his July 1971 enlistment and November 1971 separation examinations both revealed clinically normal bilateral upper extremities. In his July 1971 report of medical history, he denied symptoms such as arthritis, rheumatism or bursitis; bone, joint or other deformity; and painful or "trick" shoulder. In this November 1971 report of medical history, he denied symptoms such as painful or "trick" shoulder. He did not know whether he had arthritis, rheumatism or bursitis; and bone, joint or other deformity; a notation indicates that those answers referred to a left knee problem. A physical examination report in November 1971 dated a couple of weeks prior to the separation examination reflects that his extremities were unremarkable. An April 1972 VA examination between his periods of active duty shows that there were no signs of gross musculoskeletal asymmetry or dysfunction and no limitation of motion of the upper extremity joints. A February 1974 STR from his second period of active duty shows that he complained of right shoulder pain from a motor vehicle accident. H reported being seen in the emergency room the night before. X-rays of his shoulder were negative. The Veteran was diagnosed with a contusion. An examination also in February 1974, dated after the initial right shoulder entry, shows that the Veteran had clinically normal upper extremities. In his accompanying report of medical history, he denied symptoms such as arthritis, rheumatism or bursitis; and bone, joint or other deformity. He answered yes to having a painful or "trick" shoulder. A follow-up record in March 1974 shows that the Veteran was provisionally diagnosed with right shoulder pain; the record indicates that no acute disease was found. The Veteran's STRs do not contain any evidence of an event, injury or disease to the left shoulder, nor do they show a chronic right shoulder disorder following the accident. A post-service treatment record dated in May 1976 shows that the Veteran reported muscle spasms in his left shoulder; examination revealed no limitation of motion and no chronic disorder was diagnosed. A record in January 1999 shows that the Veteran reported working in construction by building and remodeling houses for the past 20 years. The Veteran was in another motor vehicle accident in May 2000 in which he complained of right shoulder pain; no chronic disorder was diagnosed. The earliest evidence of a bilateral shoulder disorder was in February 2001 when the Veteran reported having bad arthritis in his shoulders. Another record also dated in February 2001 shows that he had normal upper extremities; he again reported a history of arthritis. The Veteran reported having rheumatoid arthritis at a November 2002 VA psychiatric examination; treatment records beginning in March 2003 show a diagnosis of rheumatoid arthritis. The Veteran's records reflect ongoing complaints of bilateral shoulder pain and a diagnosis of rheumatoid arthritis, in addition to him reporting the in-service motor vehicle accident in which he injured his right shoulder. However, none of the Veteran's treatment records contain any opinion relating current left and right shoulder disorders to his military service, to include being secondary to the service-connected paranoid schizophrenia. The Veteran was afforded a VA examination in August 2012. He was diagnosed with degenerative joint disease of both shoulders. The Veteran reported the in-service injury of his right shoulder. The examiner noted that there was no evidence of right shoulder discomfort when the Veteran finished his active duty. The Veteran reported that over the years, he developed chronic right and left shoulder pain for which he self-medicated. The examiner opined that it was less likely as not that the Veteran's bilateral shoulder disorders were incurred in or caused by the claimed in-service injury, event or illness. The examiner reported that they had reviewed the claims file in detail and there was no evidence recorded that the Veteran sustained an injury to his left shoulder that could have eventuated in shoulder degenerative joint disease. The examiner reported that the Veteran sustained a right shoulder minor contusion with an abrasion in service, which also could not be the cause of right shoulder degenerative joint disease. The examiner noted that the Veteran's shoulder complaints came years after his active duty. The examiner also opined that it was less likely than not that the Veteran's shoulder disorders were proximately due to or the result of his service-connected paranoid schizophrenia. The rationale was that there was no credible medical evidence that schizophrenia and/or medications related to the treatment of schizophrenia cause or aggravate degenerative joint disease beyond normal progression. Based on a review of the evidence, the Board concludes that service connection for left and right shoulders disorders is not warranted. Although the evidence shows that the Veteran had an in-service right shoulder injury and currently has left and right shoulder complaints, with diagnoses of rheumatoid arthritis and degenerative joint disease, it does not show that any current disorder is related to his military service. Beginning with his left shoulder, his STRs fail to show any in-service event, injury or disease. While his right shoulder was clearly injured in a motor vehicle accident in 1974, there is no indication in those records of a left shoulder injury at that time. The evidence fails to show any to event, injury or disease to his left shoulder during his two periods of active duty. His STRs are silent for any left shoulder complaints; examinations revealed normal upper extremities. In this case, the contemporaneous service records and post-service treatment records all fail to show that he incurred an event, injury or disease to his left shoulder in service. The August 2012 VA examiner, having reviewed the claims file as well as examined the Veteran, concluded that there was no evidence recorded that the Veteran sustained an injury to his left shoulder that could have eventuated in shoulder degenerative joint disease. Therefore, the evidence does not support a finding that the in-service incurrence or aggravation of an event, injury or disease to his left shoulder actually occurred. Absent an in-service event, injury or disease, there is no nexus evidence to support a finding of service connection. As for his right shoulder, his STRs show an in-service injury in a motor vehicle accident in February 1974. However, X-rays at that time were normal and an examination in February 1974 following the accident revealed clinically normal upper extremities. Although the Veteran continued to complain of right shoulder pain in March 1974, his STRs fail to show a chronic right shoulder disorder in service. As such, the STRs do not support a finding that the in-service injury resulted in a chronic disability. The August 2012 VA examiner's opinion that the right shoulder minor contusion with an abrasion could not be the cause of right shoulder degenerative joint disease supports the Board's conclusion that the in-service injury did not result in a chronic disorder. To the extent that the Veteran's assertions indicate a continuity of right shoulder symptomatology following the injury, such assertions are outweighed by the evidence failing to show ongoing complaints. Although the Veteran initially filed a claim seeking service connection for a right shoulder disorder in 1991, there is no indication of any chronic right shoulder disorder until 2001 when the Veteran reported having arthritis. In this case, between the February 1974 injury and the earliest evidence of a right shoulder problem in 1991 when the Veteran filed a claim, there is no indication of any continued right shoulder complaints. Furthermore, the Veteran reported working in construction building and remodeling houses for the past 20 years in 1999. He did not indicate how he was able to work in such a position if he did indeed have continuing right shoulder problems since service. In this case, the contemporaneous service records fail to support the Veteran's contention that his right shoulder injury resulted in a chronic disability in service. Additionally, the absence of any right shoulder complaints until 1991 when he first filed a claim also weighs against his assertion of continuous symptoms since service. Such records are more reliable, in the Board's view, than the Veteran's unsupported assertions of events now three decades past. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a claimant's testimony simply because the claimant is an interested party; personal interest may, however, affect the credibility of the evidence); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Therefore, the evidence does not support a finding that the Veteran's in-service injury resulted in a chronic disability. In this case, the only medical opinion of record, that of the August 2012 VA examiner, indicates that the Veteran's bilateral shoulder disorders are not related to his military service. The examiner provided a thorough rationale after having had the opportunity to review the Veteran's claims file, which includes his written contentions, as well having been able to physically examine the Veteran. As such, the Board accords it great probative value. Furthermore, the examiner's opinion is supported by the Veteran's STRs as discussed above. None of the Veteran's treatment records include any opinion relating a current bilateral shoulder disorder to his military service. Here, the first evidence of a chronic left shoulder disorder was in 2001, while the first evidence of a reported right shoulder disorder was in 1991. Although the Veteran had muscle spasms in his left shoulder in 1976, no chronic disorder was shown until 2001 when he reported having arthritis. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of chronic left shoulder complaints, symptoms, or findings for over three decades between the Veteran's military service and the earliest evidence of a left shoulder disorder; and the lack of evidence of right shoulder complaints, symptoms, or findings for over one decade between the in-service injury and the first complaint of a right shoulder disorder is itself evidence which tends to show that left and right shoulder disorders did not have their onset in service or for many years thereafter. The Board also finds that service connection as secondary to the service-connected paranoid schizophrenia is also not warranted. Although the Veteran is service connected for paranoid schizophrenia and has been diagnosed post-service with rheumatoid arthritis and degenerative joint disease of both shoulders, the evidence fails to show a nexus between his service-connected paranoid schizophrenia and his bilateral shoulder disorders. The pertinent evidence of record fails to show that his paranoid schizophrenia caused or aggravated a bilateral shoulder disorder. In this case, none of the Veteran's treatment records contain any medical opinion indicating that the Veteran's paranoid schizophrenia caused or aggravated a bilateral shoulder disorder. The only medical opinion of record, that of the August 2012 VA examiner, indicates that the Veteran's paranoid schizophrenia did not cause or aggravate a bilateral shoulder disorder. This opinion is uncontradicted and supported by a well-reasoned rationale based upon a review of the claims file and an examination of the Veteran. In this case, there is no nexus evidence to support a finding of service connection on a secondary basis. As noted above, no medical professional has provided any opinion that the Veteran's rheumatoid arthritis or degenerative joint disease was related to his military service, to include being secondary to his service-connected paranoid schizophrenia. The claims folder contains no competent and probative evidence of a left or right shoulder disorder being associated with the Veteran's active duty. Without competent and probative evidence of an association between left and right shoulder disorders and his active duty, to include his service-connected paranoid schizophrenia, service connection for left and right shoulder disorders is not warranted. Furthermore, as the evidence does not show that any diagnosed arthritis was manifest to a degree of 10 percent or more within one year of discharge, the Board finds that service connection on a presumptive basis is not warranted. Similarly, the Board also finds that the evidence does not establish a continuity of symptomatology and therefore a nexus under Walker as arthritis is a chronic disease as per 38 C.F.R. § 3.309. As already discussed above, the evidence fails to show a continuity of symptoms since service. There is no indication of a left shoulder disorder until 2001 and a right shoulder disorder until 1991. In this case, the contemporaneous service records weigh against any finding of a continuity of symptomatology since service. See Curry at 68. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of left and right shoulder disorders falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to etiology have no probative value. Without competent and credible evidence of an association between left and right shoulder disorders and the Veteran's active duty, to include his service-connected paranoid schizophrenia, service connection for left and right shoulder disorders is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for left and right shoulder disorders. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for left and right shoulder disorders is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2013). ORDER Entitlement to service connection for a left shoulder disorder, to include as secondary to the service-connected paranoid schizophrenia, is denied. Entitlement to service connection for a right shoulder disorder, to include as secondary to the service-connected paranoid schizophrenia, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs