Citation Nr: 1421140	
Decision Date: 05/09/14    Archive Date: 05/21/14

DOCKET NO.  09-07 205	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a right shoulder condition.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel


INTRODUCTION

The Veteran served as a member of the United States Army, with active service from June 1969 to January 1972 and from November 1990 to July 1991 with additional periods of ACDUTRA and INACDUTRA in the United States Army Reserves.  He is in receipt of the Purple Heart Medal. 

This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

In July 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ).  The Board remanded this matter in December 2010. In April 2012, the Board issued a decision that denied the Veteran's service connection claim for a right shoulder condition.

Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 132 (Fed. Cir. 2013), the Board's April 2012 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ that conducted the July 2010 hearing.  In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board.  Subsequently, the Veteran requested only to have the prior decision vacated and a new one issued in its place.  In March 2014, the Board vacated that portion of the April 2012 decision that denied service connection for a right shoulder condition.  

The issue of entitlement to compensation under 38 U.S.C. § 1151 for a bilateral hearing loss disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See October 2011 VA Form 21-4138, Statement in Support of Claim.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2013).


FINDINGS OF FACT

The competent and probative evidence does not support a finding that a relationship exists between the Veteran's currently diagnosed right shoulder condition and his military service.


CONCLUSION OF LAW

A right shoulder condition was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Compliance with Stegall

As previously mentioned, in December 2010, the Board remanded this claim and ordered the AMC to: (1) provide proper notice to the Veteran under the Veterans Claims Assistance Act of 2000 (VCAA); (2) request that the Veteran submit evidence to include copies of service treatment records in his possession as well as identify treatment for his claims on appeal; (3) request all copies of the Veteran's service treatment records; (4) schedule the Veteran for a VA examination for his right shoulder condition and associate a report of  the examination with his claims folder; and (5) readjudicate the Veteran's claim.  

Pursuant to the Board's remand instructions, the Veteran was provided appropriate VCAA notice.  This will be discussed in greater detail below.  Additionally, the AMC contacted the Veteran in a March 2011 letter requesting that he submit evidence in support of his claims on appeal to include copies of service treatment records in his possession.  Further, the AMC contacted the service department in January 2011, requesting all of the Veteran's available service treatment records.  Thereafter, the Veteran was afforded a VA examination in March 2011 for his right shoulder condition, and a report of examination was associated with his claims folder.  The Veteran's right shoulder condition claim was then readjudicated via the January 2012 SSOC.  

Accordingly, the Board's remand instructions have been substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance].  

II.  VA's Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). 

The duty to notify requires VA to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Notice must be provided before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The record reflects that the RO provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in January 2008, prior to the initial adjudication of his claims.  In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. 

The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency.

The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims.  There is no reasonable possibility that further assistance would aid in substantiating the claims.  The pertinent evidence of record includes the Veteran's statements, service treatment records, photographs, as well as VA and private treatment records.  

The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required).  When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The opinion must be adequately supported and explained.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Veteran was afforded a VA examination in March 2011.  The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record.  The Board therefore concludes that the VA examination report is adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate].  

The Board further finds that the Veteran and his representative have demonstrated actual knowledge of the pertinent requirements to substantiate the issues on appeal. It is particularly salient to the Board in this regard that during his Board hearing, the Veteran and his representative related in great detail why they believed he was entitled to service connection for his right shoulder condition.  It is also clear from the lay statements provided by the Veteran that they understood the type of evidence that would be most helpful to his claims on appeal.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Based on the communications to the Veteran and the arguments raised by the Veteran and his representative, they have demonstrated actual knowledge of the requirements for substantiating the claims and it is reasonable to expect that the Veteran understands what is needed to prevail.  Thus, the Board finds that no prejudice results in proceeding with adjudication of the Veteran's claim.

As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2013).  The Veteran has been afforded the opportunity to present evidence and argument in support of his claims.  He has retained the services of a representative.  He was afforded a personal hearing in July 2010.

III.  Service Connection for a Right Shoulder Condition

Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013).

Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when such are manifested to a compensable degree within the initial post-service year.  See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). 

In order to establish service connection for the claimed disorder, there must be 
(1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation.  See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013).

The Court has held 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 disorder etiologically to the current disorder.  See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996).  Section 1154(b) 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.  See Gregory v. Brown, 8 Vet. App. 563, 567 (1996).

In Kessel v. West, 13 Vet. App. 9 (1999), the Court affirmed that the 38 U.S.C.A. § 1154(b) presumption only relates to the question of service incurrence, it does not relate to questions of whether the veteran has a current disability or whether there was a nexus between the in-service event and the current disability.

In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2013).

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

As noted above, in order for service connection to be granted, three elements must be present:  (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus.  See Hickson, supra.

The Veteran is claiming entitlement to service connection for a right shoulder condition, which he contends is due to his military service.  As to Hickson element (1), the medical evidence of record indicates a current diagnosis of a right shoulder condition.  Specifically, the Veteran has been diagnosed with a chronic right shoulder strain.  See, e.g., the March 2011 VA examination report.  Hickson element (1) is therefore met.   

With respect to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran asserts that he injured his right shoulder during military training in Fort Knox, Kentucky when he fell off a track vehicle. 

The Board observes that service treatment records do not indicate that the Veteran complained of or was treated for a right shoulder injury during his periods of military service.  However, the Veteran is competent to attest to experiencing such accident during service.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (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).  Therefore, the Veteran is competent to report the circumstances of injuring his right shoulder during his active military service.  Furthermore, the Board finds that the Veteran report of falling from a track vehicle is credible.  There is nothing in the claims folder to suggest that the Veteran did not sustain the accident as described.  Hickson element (2) is therefore met. 

Turning to the "nexus" element, the Board finds that a preponderance of the competent and probative evidence of record supports a finding that the Veteran's current right shoulder condition is not related to his military service.

Specifically, the Veteran was afforded a VA examination in March 2011.  In addition to the results of a current examination, the VA examiner considered the Veteran's in-service fall.  Despite the Veteran's in-service right shoulder injury, the VA examiner concluded that, "[i]t is therefore less likely than not this [V]eteran's current shoulder condition is related to his service..."  The examiner's rationale for his conclusion was based on a review of the Veteran's claims folder and examination of the Veteran.  Further, the examiner indicated that the Veteran's right shoulder injury was not documented in the available service treatment records, and regular physical examinations during service did not show any right shoulder condition.  The examiner additionally noted that the Veteran worked as an assembly line worker in an automobile plant for 19 years after the Veteran was discharged from active duty, and he stated that automobile plant assembly line work is a risk factor for shoulder injuries.  He therefore concluded that it is less likely than not that the Veteran's current right shoulder condition is related to his military service.  

The March 2011 VA examination report appears to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"].  Additionally, the March 2011 VA examiner's opinion appears to be consistent with the Veteran's medical history, which is absent any symptomatology of a right shoulder condition for several years after service and his service records which do not show complaints of or treatment for a right shoulder condition.  Further, in rendering the opinion, the VA examiner considered the Veteran's reported in-service right shoulder injury and progressively worse right shoulder pain, and indicated that the Veteran's military service did not cause his current right shoulder condition.   

The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion.  As was explained in the section delineating VA's duty to notify, the Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim.  He has failed to do so.  See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits].

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
"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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including right shoulder pain), has presented no clinical evidence of a medical nexus between his diagnosed right shoulder condition and in-service right shoulder injury.  The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to his military service.  Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person.  In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a medical nexus to be of no probative value.  See also 38 C.F.R. § 3.159(a)(1) (2013) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a medical nexus.

The Board again notes that the provisions of 38 U.S.C.A. § 1154(b) only provide an evidentiary presumption concerning events in service; they do not provide a substitute for evidence of a causal nexus between a combat service injury or disease and a current disability, or the continuation of symptoms subsequent to service.  See Wade v. West, 11 Vet. App. 302, 305 (1999), as well as Libertine, Gregory and Kessel, all supra.  Moreover, as noted immediately above, the VA examiner's opinion is consistent with the objective medical evidence of record or, specifically, the lack of a right shoulder condition for more than 15 years after separation from service.

The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology.  The Board notes that the Veteran appears to be contending that he has had a right shoulder condition continually since service.  However, the first post-service evidence of complaint of, or treatment for, a right shoulder condition is from an August 2007 VA treatment record.  This was more than 15 years after the Veteran left active service in July 1991.  

While the Veteran is competent to report right shoulder pain over the years since service, the Board notes that a right shoulder condition was not reported at the time of his service discharges from active duty in January 1972 or May 1991.  The Board finds that his current statements regarding a continuity of a right shoulder condition since service are not credible.  His service separation examinations as well as the March 2011 VA examination contradict any current assertion that his current right shoulder condition was manifested during service.  There is no competent medical evidence that the Veteran complained of or was treated for a right shoulder condition for many years after his separation from service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also 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 the claimed condition].  The Board accordingly places no probative value on the assertions of the Veteran that there has been a continuity of symptomatology dating to service.  Therefore, continuity of symptomatology after service is not demonstrated. 

Accordingly, Hickson element (3) is not met, and service connection for a right shoulder condition is not warranted.  
 
In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right shoulder condition.  The benefit sought on appeal is accordingly denied.


ORDER

Entitlement to service connection for a right shoulder condition is denied.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs