Citation Nr: 1418596 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 10-05 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to an effective date earlier than April 6, 2007, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from January 1980 to June 1990 and from June 2005 to June 2006. These matters comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2013, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. (The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to November 14, 2011 is the subject of a separate decision issued simultaneously with this decision under a separate docket number.) FINDINGS OF FACT 1. The Veteran has provided competent and credible lay descriptions of continuity and chronicity of bilateral shoulder symptoms, variously diagnosed as left shoulder arthritis and bilateral rotator cuff tears, since his service discharge. 2. On August 6, 2007, the RO received a letter from the Veteran in which he stated that he had been diagnosed with PTSD and that in order to receive any benefits or compensation he had to write the letter. The RO appeared to accept that as an informal claim for service connection for PTSD. 3. There was no formal claim, informal claim, or written intent to file a claim for service connection for PTSD of record prior to August 6, 2007. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a right shoulder disability have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a left shoulder disability have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 3. The claim for an effective date earlier than August 6, 2007, for the grant of service connection for PTSD is denied. 38 U.S.C.A. § 5110, 5107 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has an obligation to notify claimants of what information or evidence is needed to substantiate a claim, and a duty to assist claimants by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, however, the appellate claim arises from the Veteran's disagreement with the effective date following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. Shinseki v. Sanders, 129 S.Ct.1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision). Resolution of this appellate claim is based upon the application of the law to undisputed facts. Consequently, no discussion of VA's duties to notify and assist is necessary. Mason v. Principi, 16 Vet. App. 129 (2002). Moreover, the Board notes that, as a general rule, the adjudication of a claim for an earlier effective date is based upon evidence already in the claims folder. The resolution of the claim depends upon when certain documents were either received by VA or promulgated to the Veteran. Therefore, there is no reasonable possibility that any further development, such as a medical examination, would aid in the resolution of the earlier effective date claim. In addition, as the claims for service connection for a right and a left shoulder disability are granted, the Board finds that any further notification or development actions are unnecessary with regard to those claims. Service Connection The Veteran contends that left and right shoulder disabilities had their onset during his second period of active service while deployed to Afghanistan. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. 3.307, 3.309(a) (2013). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 2013). In each case where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2013). With respect to combat Veterans, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service, notwithstanding the fact that there is no official record of incurrence or aggravation in service, and shall resolve every reasonable doubt in favor of the Veteran. Service connection of the injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). However, that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disability etiologically to the current disability. Libertine v. Brown, 9 Vet. App. 521 (1996). The statute does not establish service connection for a combat Veteran. It aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A Veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. Gregory v. Brown, 8 Vet. App. 563 (1996); Kessel v. West, 13 Vet. App. 9 (1999). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim: the appellant prevails in either event. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, the reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). Service personnel records verify the Veteran's status as a combat veteran, specifically his receipt of the Combat Infantryman Badge (CIB). 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2013). The Veteran's service separation form indicates that his military occupational specialty (MOS) was Infantryman for his second period of active service. Service medical records from the Veteran's second period of service show that the Veteran was seen often with complaints of bilateral elbow pain. One examiner noted that the Veteran was a gunner and used his wrists and arms constantly. An April 2006 post-deployment health assessment shows that the Veteran was in Afghanistan assigned to an infantry battalion. The Veteran reported his health got worse during his deployment and that he had swollen, stiff, or painful joints. While deployed, the Veteran indicated that he was exposed to excessive vibration. A June 2007 VA medical record notes that the Veteran reported that he had elbow disabilities due to being a gunner and riding on a bumpy road in Afghanistan. In addition, he struck his forearms on the vehicle. A June 2008 VA medical record shows that the Veteran was seen for follow-up of various joint pain, to include the shoulders. In a December 2008 statement, the Veteran reported that he was assigned as a gunner and was bounced around vigorously for several hours at a time over uneven and off road trails. He further stated that the only way to prevent some of the shock was to hold on to with both hands, so that his elbows and hands, "which are connected to my shoulders," took most of the beating. At a March 2009 VA joints examination, the examiner noted that after a review of the claims file, he could not find one document from either of the Veteran's period of service related to his shoulders. X-rays were undertaken. The clinical history provided by the Veteran was that in Afghanistan he was a gunner on a HUMVEE and most of the time was standing up, shaking back and forth, jumping up and down, hitting pot holes, and moving and shaking causing bilateral medial shoulder pain, anterior. The diagnosis was right shoulder, stable joint normal examination and left shoulder, stable joint acromioclavicular joint degenerative changes. The examiner opined that the Veteran's currently described bilateral shoulder symptoms were not caused by or a result of active duty service. The basis for the negative opinion was that there was no evidence that the Veteran had problems with his shoulder on active duty and there was no medical evidence that his contention had merit as nexus to current complaints. A September 2009 VA joints examination report notes that the Veteran had bilateral impingement syndrome. The Veteran reported the onset of shoulder problems in 2005. This examiner noted that March 2009 x-rays showed slight degenerative joint disease of the AC joints, but were otherwise normal. The examiner opined that it was less likely as not that the bilateral shoulder pain is service-connected. The VA examiner's rationale was that only one service medical record in 1986 stated there was a shoulder problem. The Veteran stated that his shoulders began to bother him in about 2005 in Afghanistan when he was stationed on a turret. He was not seen or treated. In March 2010, the Veteran under MRIs of both shoulders. An April 2010 VA medical record notes that the Veteran was seen for surgical clearance for rotator cuff tears in his bilateral shoulders. An April 2010 private medical records shows that the Veteran was seen for bilateral shoulder pain. He stated that he was deployed in Afghanistan and as a HUMVEE gunner. He started having pain throughout the war and his shoulders had not been the same ever since. He was assessed with bilateral partial thickness rotator cuff tears and bilateral impingement syndrome. During the July 2013 Board hearing, the Veteran testified that while deployed to Afghanistan he was in an armored Humvee with a gun on top. He testified that he handled the mounted 50 caliber machine gun and to prevent himself from being thrown out of the vehicle he had to hold onto the HUMVEE or the machine gun itself. He described it as unsteady and like he was a "bobble head." He described traveling on trails consisting of uneven terrain with a holes, ditches, boulders and rivers to forge across. The circumstances of his travels resulted in him "getting smacked around" and his elbows and shoulders took the brunt of that beating. He testified that while in the field his shoulders started to bother him, but the field medic just gave him ibuprofen for pain. He also testified that in his post-deployment questionnaire he stated that he had swollen, stiff or painful joints and this included his shoulders. The Board has heavily considered the Veteran's consistent reports of bilateral shoulder pain, their onset, and his assertions concerning continuity of symptomatology since service. The Board errs when it suggests that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (2010) . The Board finds that the Veteran is competent to report that his shoulder pain began in service. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). Moreover, the Board considers the statements of the Veteran be credible as they are facially plausible, internally consistent, and consistent with the other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Significantly, the Veteran's service medical records contain a specific note from an examiner that the Veteran was a gunner and used his wrists and arms constantly. In addition, the Veteran's post-deployment assessment shows that he complained of joint pain. Furthermore, the record contains medical evidence of shoulder complaints in June 2008, less than three years after discharge from active service and arthritis of the shoulders was identified shortly thereafter. The Veteran has continuously reported while seeking medical treatment and during VA examinations that his bilateral shoulder symptoms first manifested while deployed to Afghanistan and have continued since. Thus, the Board concludes that the competent lay evidence of record shows credible assertions as to the onset and continued struggle with bilateral shoulder symptoms after service. The Board has considered the negative opinions of the March and September 2009 VA examiners, but assigns each of them little probative value. Both examiners relied heavily on the absence of treatment records in service and appear to have dismissed the Veteran's competent and credible lay evidence as to onset and continuing symptoms. Further, neither examiner discussed the service medical record in which an examiner noted that the Veteran was a gunner and used his wrists and arms constantly or the April 2006 post-deployment health assessment in which the Veteran reported that he had swollen, stiff, or painful joints and while deployed, he was exposed to excessive vibration. Thus, each of the examiners relied largely, if not entirely, on the absence of corroborating medical evidence, and failed to adequately consider and address the competent, credible, and highly probative lay evidence in favor of the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, the Board finds that the balance of positive and negative evidence is at the very least in relative equipoise. Resolving all reasonable doubt remaining in favor of the Veteran, the Board finds that service connection for right and left shoulder disabilities is warranted. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Date On August 6, 2007, the RO received a letter from the Veteran in which he stated that he had been diagnosed with PTSD and that in order to receive any benefits or compensation he had to write the letter. The RO appeared to accept that as an informal claim for service connection for PTSD. An October 2008 rating decision granted service connection for PTSD, effective August 6, 2007. In November 2008 correspondence, the Veteran disagreed with the effective date assigned for the grant of service connection for PTSD and asserted that an effective date in June 2006 was warranted. He contends that he did not know that he had to file a separate claim for service connection for PTSD to receive VA disability benefits, in addition to claims that he previously submitted. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013). The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation. Otherwise the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2013). The term claim or application means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2013). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. The informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2013). The Veteran essentially contends, in his statements and hearing testimony, that he is entitled to an earlier effective date as he was unaware that he had to file a claim for service connection for PTSD until he was referred to a VA PTSD group. He further stated that he did not acquire PTSD in 2007, but rather when he got back from Afghanistan. He believes he is entitled to an effective date from 2006 when he filed his initial claim for separate and unrelated disabilities. The Board finds that there is no evidence of record showing that it was the intent of the Veteran to apply for service connection for PTSD under the law administered by VA until August 6, 2007. While the Veteran contends that he was unaware of the need to file for a claim for service connection, he clearly understood at the time he filed claims for other disabilities in June 2006 that a claim was required. In fact, in May 2006, the Veteran submitted a VA form 21-526, Veteran's Application for Compensation and/or Pension Benefits, and listed that he was seeking VA disability compensation benefits for bilateral elbow disabilities, right knee and left foot disabilities, allergies, tinnitus, hearing loss, and numbness of the hands. There was no request for service connection for PTSD or any psychiatric disorder at the time of the initial claim for VA disability benefits in May 2006. At the time VA received the Veteran's claim for service connection for PTSD, the Veteran was more than year post-discharge from his last period of active service in June 2006. Therefore, the date of the claim for entitlement for the benefits sought was the correct effective date assigned for the grant of service connection for PTSD. Although the Veteran's attempted moral arguments are acknowledged and well-taken, the Board lacks the authority to implement them. VA, including the Board, is bound by the applicable law and regulations as written. 38 U.S.C.A. § 7104(c) (West 2002). The regulations regarding the effective date of an award of service connection compensation derive their authority from the United States Code. 38 U.S.C.A. § 5110 (West 2002). It is the function of Congress to make law, and the function of VA, including the Board, to faithfully implement those laws. Additionally, the Board is without authority to grant benefits simply on the basis that it might be perceived as equitable. 38 U.S.C.A. §§ 503, 7104 (West 2002). The Board observes that no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429 (1992). Therefore, based on the above-stated facts and regulations, the Board finds that the legally correct date for the grant of service connection for PTSD is August 6, 2007, the date VA received the Veteran's original informal claim of entitlement to service connection for PTSD. As such, the Veteran is not entitled to an earlier effective date and his claim must be denied. The preponderance of the evidence is against the assignment of any earlier effective date. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right shoulder disability is granted. Service connection for a left shoulder disability is granted. Entitlement to an effective date earlier than August 6, 2007, for the grant of entitlement to service connection for PTSD, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs