Citation Nr: 1324641 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-00 176A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for residuals of a right shoulder injury. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The appellant had Reserve service from March 1975 to January 1978, including a period of active duty for training (ACDUTRA) in June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT The evidence of record does not show the appellant has a present disability of the right shoulder. CONCLUSION OF LAW The criteria for service connection for residuals of a right shoulder injury have not been met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and a duty to assist the appellant in substantiating her claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the appellant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the appellant is expected to provide. 38 U.S.C.A. § 5103(a)(1); 38 C.F.R. § 3.159(b)(1). Here, in October 2008, VA provided a letter to the appellant informing her what evidence was necessary to substantiate the claim, what evidence she was responsible for obtaining and what evidence VA was responsible for providing. She was also apprised of the criteria for consideration in the assignment of a disability rating, and effective date, in the event of award of the benefit sought. Thus, VA has complied with the notice duty required by the VCAA. Additionally, the appellant has not alleged notice in this case was less than adequate. VA satisfied the duty to assist the appellant under the VCAA by gathering relevant records. VA has a duty to assist in obtaining the appellant's service medical records, VA medical records and other relevant records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). In this case, the appellant's available service treatment records, from the Army Reserve, have been obtained and are in the claims file. VA has attempted to procure the appellant's records from Temple Community Hospital but the hospital has indicated they cannot locate any patient information or records for the appellant. The appellant herself stated that she has attempted to procure the records from Temple Community Hospital but she was told all records are destroyed after 10 years. As these identified records are likely destroyed, a remand for another records request is not necessary as such a request would be futile. Thus, appellate review may proceed without prejudice to the appellant. Additionally, VA has not provided a medical examination to the appellant as the standard for VA to provide an examination was not satisfied. VA has a duty to provide a medical examination when it is necessary to make a decision on a claim if the evidence (including lay statements of the appellant), contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the appellant's service; and there is not sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the appellant has not stated she has had a current disability related to residuals of her claimed right shoulder injury at any time proximate to her claim. On the application form, dated June 2008, the appellant states her disability began in 1975 and she had surgery from June 1989 to August 1989 for removal of fatty tissue created by the rifle kickback, but she does not indicate that she has a current disability or even the existence of any symptoms at the present time or at any time proximate to her claim. The appellant also submitted two statements from her co-workers, dated April 2009, stating she had shoulder surgery in 1989, but neither address the status of the appellant's right shoulder since her claim. Thus, the record does not show that the appellant has had a right shoulder disability at any time proximate to her claim and, therefore, VA does not have a duty to assist the appellant by obtaining a medical examination. In sum, VA met its obligations to notify and assist the appellant by providing the appellant with proper notice and obtaining the available records. VA does not have a duty to provide a VA examination to the appellant as the appellant has not met the necessary standard with respect to her claim of chronic disability due to a right shoulder injury. Thus, VA satisfied its duties to notify and assist the appellant with her claim. II. Merits of the Claim Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(24)(B) (West 2002); 38 C.F.R. § 3.6 (2012). Additionally, VA has the authority to determine whether the appellant was in active service, including ACDUTRA, at the time a claimed injury occurred. See 38 U.S.C.A. § 106 (West 2002). Here, the appellant's period of ACDUTRA is from June 16, 1975 to June 27, 1975, thus, the appellant's claimed injury would have to have occurred in this time period. To establish service connection for a present disability, the appellant must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). In service connection claims, consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a). In this case, the evidence does not demonstrate the existence of a disability at any time proximate to, or since the claim for service connection for residuals of a right should injury. If there is no evidence of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). Here, the evidence of record does not contain any evidence of a disability related to the appellant's right shoulder injury at any time proximate to, or since, the claim. As discussed above, there are two statements from the appellant's co-workers, dated in April 2009, which both recall the appellant's right shoulder surgery in 1989, but do not address the issue of any chronic residual disability. Additionally, on the appellant's application form, dated in June 2008, she does not state that there is present disability, but only notes an injury in 1975 and the surgery during June 1989 to August 1989. Even if the statements by the appellant and her co-workers concerning the 1989 surgery are taken as credible, the statements do not represent evidence of a chronic right shoulder disability proximate to the 2008 claim because the surgery was 20 years prior to the current claim. Cf. Romanowsky v. Shinseki, 11-3272, 2013 WL 3455655, at *4 (Vet. App. July 10, 2013) (holding that evidence of recent in-service diagnosis followed shortly thereafter by a claim can be relevant evidence of a present disability). Thus, the Board finds no evidence of chronic residual disability of a right shoulder injury. In sum, the appellant has not satisfied the necessary element of a present disability. No further discussion of the in-service incurrence or nexus elements is necessary. Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for residuals of a right shoulder injury. ORDER Entitlement to service connection for residuals of a right shoulder injury is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs