Citation Nr: 1422210 Decision Date: 05/16/14 Archive Date: 05/29/14 DOCKET NO. 11-21 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a left shoulder and arm disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran testified at a videoconference hearing held by the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. No left shoulder and arm condition was noted on the Veteran's January 1968 service entrance examination. 2. The Veteran's current left shoulder and arm disability, diagnosed as left shoulder instability, clearly and unmistakably preexisted service. 3. The Veteran's left shoulder instability clearly and unmistakably was not aggravated by service or by any incident of service. CONCLUSION OF LAW The criteria for service connection for a left shoulder and arm disability are not met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002; 38 C.F.R. §§ 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A November 2009 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and identified and available post-service medical treatment records have been obtained. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). VA examinations were conducted in February 2010 and February 2013 in connection with the present claim, and the reports of these examinations are associated with the claims file. The February 2010 VA examination report did not provide an opinion addressing whether the Veteran's preexisting left shoulder and arm disability was aggravated by his period of service. Accordingly, another VA examination was conducted in February 2013, at which time the examiner offered an opinion addressing this matter. The February 2013 VA examination report included diagnoses and opinions which are consistent with the other evidence of record following a physical examination of the Veteran and a review of the record. The offered opinion is accompanied by a complete rationale. For these reasons, the Board concludes that the February 2013 VA examination is adequate for the purpose of adjudicating the Veteran's claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the record. 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). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge who conducts 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. During the Veteran's Board hearing, the Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. The representative and the Veterans Law Judge (VLJ) solicited information regarding any outstanding evidence pertinent to the claim on appeal and asked questions to ascertain the onset of the Veteran's left shoulder and arm disability, and any relationship between this condition and his service. The hearing focused on the evidence necessary to substantiate the Veteran's claim for service connection. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the claimant's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability [was] due to the natural progress of the preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the claimant is not entitled to service- connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. A preexisting injury or disease will be considered to have been aggravated where there is an increased in severity during service unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 C.F.R. § 3.306(a) (2013). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preserves disability underwent and increase in severity during service. 38 C.F.R. § 3.306(b) (2013). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (2013). Because the January 1968 service entrance examination shows no findings of a left shoulder and arm disorder, the presumption of soundness attaches. 38 U.S.C.A. § 1111, 38 C.F.R. § 3.304(b)(1). However, as stated in Wagner, the presumption of soundness may be rebutted by clear and unmistakable evidence that the claimant's disability was both preexisting and not aggravated by service. After thorough review, the Board finds that the evidence is clear and unmistakable in establishing that the Veteran's left shoulder instability preexisted service. Although the January 1968 service entrance examination did not note a left shoulder and arm condition, the Veteran's service treatment records reflect that he was seen for anterior dislocation of the left shoulder 6 weeks into his basic training in February 1968, at which time he reported that he dislocated his shoulder 3 times before entering service. A March 1968 service treatment report noted that the Veteran had fallen and dislocated his left shoulder and stated that he had dislocated his shoulder approximately 3 times before entry into his military service. The treating physician rendered a diagnosis of chronic recurrent anterior dislocation of the left shoulder and noted that the condition was unchanged and not aggravated by service. A March 1968 report of medical board proceedings reflects that the Veteran was recommended for discharge from military service by reasons of this disqualifying condition as his was restricted from prolonged handling of heavy materials, overhead work, pull-ups or push-ups, and strenuous physical activity involving the upper extremities. The Veteran now asserts that he did not have any preexisting left shoulder or arm problem or condition prior to service. However, service treatment records clearly show that in service, he reported approximately 3 episodes of left shoulder dislocation that occurred prior to entering service. In this case, the Veteran is certainly competent to identify a shoulder dislocation. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Such a diagnosis was specifically contemplated in Jandreau. Further, the Board notes that the Veteran's February 1968 statements made during service prior to the filing of the instant claim for service connection, and are more probative than his current assertions as they are contemporaneous with the time in question. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Therefore, based on the Veteran's statements in service, the Board finds that clear and unmistakable evidence exists that his recurrent left shoulder dislocations preexisted service. Next, the question before the Board is whether this preexisting disability was clearly and unmistakably not aggravated by any incident of service. Concerning this, in the March 1968 service treatment report, the treating physician rendered a diagnosis of chronic recurrent anterior dislocation of the left shoulder and stated that the condition was unchanged and not aggravated by service. Furthermore, in the February 2013 VA examination report, the clinician opined that although physical activity can cause pain in the shoulder, the Veteran's preexisting left shoulder condition was not aggravated beyond its natural progression by service. In providing this opinion, the examiner stated with no documentation of specific structural injury, this was part of a natural progression. As service treatment records noted no left shoulder injury other than dislocation, there was no aggravation of the Veteran's preexisting left shoulder condition beyond its natural progression. Regarding his current mild acromioclavicular arthrosis shown on x-ray, the examiner stated that it was very common in the general population of the Veteran's age group. The Board finds that the February 2013 VA examiner's opinion concerning this matter to be persuasive. The VA examiner conducted a physical examination of the Veteran, reviewed the entire claims file and medical history of the Veteran, and provided an appropriate opinion with a supporting rationale which is congruent with the balance of the medical evidence of record. Thus, the Board finds that the VA examiner's opinion is competent and persuasive evidence with respect to the matter of permanent aggravation of his preexisting left shoulder and arm disability. The evidence clearly and unmistakably establishes that the Veteran's left shoulder and arm disability pre-existed service, and clearly and unmistakably shows that it was not aggravated by service. Therefore, service connection is not warranted. ORDER Entitlement to service connection for a left shoulder and arm disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs