Citation Nr: 1343532 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 07-19 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1979 to June 1981, from May 1987 to September 1987, from July 1989 to September 1993, from April 1998 to September 1998, and from October 1998 to June 2001. She also had periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2011 and September 2013 when it was remanded for additional development. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The matter of entitlement to a separate rating for radiculopathy of the upper extremities, secondary to service-connected posttraumatic cervical myofascial disorder, has been raised in a November 2013 VA examination report. See 38 C.F.R. § 3.157 (2013) (stating that receipt of clinical reports of examination or hospitalization may serve as informal claims for increase where the claim is for an already service-connected condition). As the Veteran has already established service-connection for posttraumatic cervical myofascial disorder, the Board finds that the matter of entitlement to an increased rating for such disability has been raised, to include separate ratings for associated neurological abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula for Rating Diseases and Injuries of the Spine, Note (1). The Board does not have jurisdiction over this matter, and it is referred to the Agency of Original Jurisdiction for appropriate action. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that any current right shoulder disorder is related to the Veteran's service or to any event or injury therein. 2. The preponderance of the evidence is against a finding that any current left shoulder disorder is related to the Veteran's service or to any event or injury therein. CONCLUSIONS OF LAW 1. Service connection for a right shoulder disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. § 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Service connection for a left shoulder disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. § 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the VCAA duty to notify was satisfied by way of an April 2005 letter. The letter was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content as to the appellant's claim. While the Veteran was not provided notice as to what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), she is not prejudiced by such lack of notice because service connection is not granted in the decision below. In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). VA also has a duty to assist the Veteran in the development of her claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records, VA and private treatment records, and lay statements have been obtained. The Veteran had a VA examination in June 2006 (with addendum opinion in March 2011), and a separate VA opinion was obtained in October 2013. For reasons discussed below, the Board finds that the examinations, cumulatively, are adequate for the purpose of deciding the claim on appeal decided herein. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to develop evidence is required. B. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in VA's electronic data storage system with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At the outset, the Board notes that the evidence shows the Veteran has been diagnosed with disorders of both shoulders. Specifically, she has been diagnosed with right shoulder adhesive capsulitis, impingement tendinitis and acromioclavicular joint synovitis, status post arthroscopic subacromial decompression and arthroscopic distal clavicle resection. She has also been diagnosed with left shoulder impingement, tendinitis and acromioclavicular joint arthritis, status post left shoulder arthroscopic subacromial decompression and arthroscopic distal clavicle resection. Accordingly, the first element of service connection is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between her military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). In this case, the Veteran asserts her bilateral shoulder disorders are related to a motor vehicle accident in May 1996, during what has been conceded as active duty for training. The evidence shows that she was a passenger in a commuter van which was stopped in traffic when it was struck in the rear by a full-size commuter bus traveling approximately 60 to 65 miles per hour. See, e.g., July 1999 Dr. M.M. Theiss report. An August 1996 Neurology Center of Fairfax report noted the Veteran's complaint of soreness, tightness and aching in her shoulders. She denied any weakness or numbness in the upper extremities. On physical examination, upper extremity bulk, strength, and tone were normal. She was instructed to use heat on her shoulders and resume physical therapy. An August 1996 Metropolitan Washington Orthopaedic Association report noted the Veteran's complaint of shoulder pain, the onset at the end of the first month after the motor vehicle accident, progressively worsening. She again complained of shoulder pain in December 1996. Dr. J.P. Simsarian treatment records show the Veteran's complaint of persistent shoulder pain with tenderness and tightness as early as September 1996. Beginning in December 1996, she received injections, in part, in the upper trapezius area. In January 1997, she was instructed to obtain a TENS unit to use to help with her pain. In July 1997, she received trigger-point injections in the upper trapezius area. She continued to complain of shoulder pain through 2000. Service treatment records for the period of active service following the motor vehicle accident show that in June 1998, the Veteran complained of sore shoulders. In December 1998, she complained of periodic shoulder spasm. In a January 2000 record, it was noted the Veteran has a history of shoulder pain status post motor vehicle accident. In November 2000, the Veteran reported she has muscle spasms in her shoulders and has had trigger-point injections. Post-service evidence includes Dr. S.A. Seeker treatment records showing in August 2003, the Veteran complained of left shoulder pain the last several months, and also problems with her shoulders since the motor vehicle accident in 1996. In October 2003, she reported left shoulder stiffness for one year; a diagnosis of adhesive capsulitis was provided. In November 2003, she underwent left shoulder manipulation for adhesive capsulitis. In March 2004, she was diagnosed with left shoulder impingement tendinitis and acromioclavicular joint arthritis/synovitis. She underwent left shoulder arthroscopic subacromial decompression and arthroscopic distal clavicle resection. In July 2004, she was diagnosed with right shoulder adhesive capsulitis after complaining that her right shoulder was beginning to have stiffness. She was also diagnosed with right shoulder impingement tendinitis and acromioclavicular joint synovitis. In September 2004, she underwent right shoulder subacromial decompression. The instant claim for service connection for a bilateral shoulder disorder was filed in January 2005. On June 2006 VA examination, the Veteran reported her shoulder problems started about 10 years prior, after the motor vehicle accident. She complained of shoulder pain anteriorly and in the scapular areas. She also reported weakness, and stiffness in the shoulders. On physical examination, power was 4+/5 in the upper extremities. There was also tenderness in the shoulders, decreased range of motion, pain on motion, and guarding on motion testing. After diagnosing the Veteran with the already above-noted diagnoses, the examiner stated, "[T]o opine that the present shoulder complaints are the direct and proximate result of injuries in the service would require resort to speculation." In a March 2011 VA examination addendum report, after a review of the claims file and the prior VA examination, it was opined that the arthritis changes in the shoulders are at least as likely as not consistent with the process of natural aging, and less likely as not posttraumatic. The examiner further opined that the capsulitis is most often idiopathic in nature, and not associated with injury or discernible cause. In conclusion, the examiner found that the right and left shoulder disorders were less likely as not related to the injury sustained in the 1996 motor vehicle accident in service. On October 2013 VA examination, the examiner opined that the Veteran's claimed bilateral shoulder disorders were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness (i.e., the 1996 motor vehicle accident). It was indicated that complaints of left shoulder pain was in 1996 and 1997 treatment notes, but the only diagnosis related to such complaints was shoulder spasms in 1998. However, spasms would not be the etiology of degenerative/posttraumatic arthritis, adhesive capsulitis, or acromioclavicular joint disorders. The shoulder pain/complaints following the motor vehicle accident are more consistent with radicular pain originating in the cervical spine at C5-C6. The frozen shoulder/adhesive capsulitis diagnosis has an idiopathic etiology for the most part, as it is seen most commonly in the fifth decade of life and has an increased occurrence in women. In conclusion, the examiner found that the medical records don't indicate the adhesive capsulitis until several years following the motor vehicle accident (i.e., 2003), making it more likely due to other causes. The Board finds that a preponderance of the evidence is against a finding that the Veteran's current bilateral shoulder disorders are related to her active service, to include the in-service motor vehicle accident. While the Veteran's service treatment records show complaints of bilateral shoulder pain and spasms during service, there is no evidence of an underlying disorder of either shoulder during her active service. Consequently, service connection for a disorder of either shoulder on the basis that such disability became manifest in service and persisted is not warranted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that mere pain alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted). To the extent the Veteran may be seeking to establish a nexus between her current shoulder disorders and her service by alleging recurrence of symptoms since the motor vehicle accident, such allegation is inconsistent with, and unsupported by, the factual evidence of record, and are not credible. Notably, while there is evidence showing bilateral shoulder complaints consistently for years after the accident, there is also evidence wherein she reports her shoulder symptomatology is of more recent occurrence (i.e., not related to the 1996 accident. See, e.g., August 2003 Dr. S.A. Seeker treatment record showing Veteran complained of left shoulder pain the last several months, and an October 2003 record showing her report of left shoulder stiffness for one year (emphasis added); see also July 2004 Dr. S.A. Seeker treatment record noting the Veteran's , complaint that her right shoulder was beginning to have stiffness (emphasis added). Furthermore, there is no evidence of an underlying disorder of either shoulder until 2003, approximately two years after service. What remains for consideration is whether the bilateral shoulder disorders are somehow otherwise shown to be etiologically related to the Veteran's service. The only competent medical evidence in this matter consists of the reports of the June 2006, March 2011 and October 2013 VA examinations. The Board finds that the March 2011 and October 2013 VA examinations are to be entitled to great probative weight as the examiners reviewed the Veteran's entire medical history, the March 2011 examiner interviewed the Veteran and obtained her report of the onset of her shoulder disorders, and both examiners explained in full the rationale for the conclusions reached, citing to the intervening period between the accident in service and her current bilateral shoulder disorders. The Board also finds significant that the October 2013 VA examiner explained that the complaint and diagnosis of shoulder spasms in 1998 during the Veteran's active service would not be the etiology of degenerative/posttraumatic arthritis, adhesive capsulitis, or acromioclavicular joint disorders. Because there is no competent evidence to the contrary, the Board finds the VA examiners' opinions to be persuasive. The Board has also considered the Veteran's lay statements wherein she alleges her bilateral shoulder disorders are related to her accident in service, and finds that they do not merit any substantial probative value. The Board acknowledges that lay evidence concerning recurrence of symptoms after service, if credible, can be competent, despite the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). However, in this case, the Veteran's assertions as to the onset of her bilateral shoulder disorders are contradictory, and do not offer any explanation for the clinical data that weigh against her claim (to include the interval before she was diagnosed with a disorder of either shoulder). Whether the diagnosed shoulder disorders may (in the absence of credible evidence on recurrence of symptomatology, as here) be related to an accident during service is a medical question not capable of resolution by mere lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran, as a lay person, is not competent to report that her shoulder disorders, first shown after service, are related to service, including a motor vehicle accident therein. Id. Hence, her lay assertions are not competent or sufficient to establish service connection. Id. In contrast, the opinions from the medical professionals in this case have not related the Veteran's bilateral shoulder disorders to her active service or the accident therein. The Veteran has not submitted any supporting medical evidence for her allegation of a nexus, such as a medical nexus opinion or citation to supporting textual evidence. In this case, the most probative evidence is against a finding that the Veteran's disorders of the right and left shoulder are related to service, to include the motor vehicle accident in May 1996 during service. Accordingly, the claim for service connection for right and left shoulder disorders is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski¸ 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a right shoulder disorder is denied. Service connection for a left shoulder disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs