Citation Nr: 1426041 Decision Date: 06/09/14 Archive Date: 06/16/14 DOCKET NO. 10-10 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran served in the Army National Guard from August 1983 to August 1984, including a period of active duty training from July 9, 1984 to August 20, 1984. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2010 by the undersigned Veterans Law Judge. In April 2011, the Board remanded this claim for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The RO was instructed to obtain additional medical records, to afford the Veteran a VA examination, and to obtain a medical opinion. Additional medical records were obtained from private hospitals, and the RO requested the Veteran's consent to obtain medical records from prison facilities. See April 2011 Letter to Veteran. In November 2011, the RO was notified that the Veteran's records from Canandaigua Medical Group had been destroyed. The RO was also notified in January 2012 that the New York Department of Corrections had also destroyed the Veteran's medical records. The Veteran was afforded a VA examination in May 2011 and a medical opinion was obtained. That development having been completed, the claim is now ready for appellate review. (CONTINUED ON NEXT PAGE) FINDING OF FACT The preponderance of the evidence reflects that the Veteran's left shoulder disorder is not due to any incident of his active duty service. CONCLUSION OF LAW Service connection for a left shoulder disorder is not established. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A letter dated November 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in an April 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. The duty to assist has also been met. The Veteran's service treatment records, VA medical treatment records, available private treatment records, and Social Security records have been obtained. See 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was afforded a VA examination and a VA medical opinion pertinent to the issue on appeal has been obtained. Virtual VA records have been reviewed. With respect to the Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ 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. Here, during the hearing, the VLJ noted that the appeal included the issue of service connection for a left shoulder disorder, and asked questions to clarify the Veteran's contentions. See August 2010 Hearing Transcript, page 2. Although the VLJ did not specifically note the elements that were lacking to substantiate this claim, the testimony of the Veteran, to include the questions posed by his accredited representative, demonstrated that he had actual knowledge of the elements necessary to substantiate this claim. Moreover, as detailed below, the Veteran received adequate notification as to the elements necessary to substantiate his claim. Finally, 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 either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. 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). The Board notes that in November 2011, the RO was notified that the Veteran's records from Canandaigua Medical Group were destroyed and no longer available. See November 2011 letter. Furthermore, in January 2012, the RO was notified that New York Correction Department had also destroyed the Veteran's records. Therefore, the Board finds that all available records have been obtained and associated with the claims file. 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. II. Entitlement to Service Connection for a Left Shoulder Disorder The Veteran seeks entitlement to service connection for a left shoulder disorder. He asserts he injured his left shoulder during service and that several post-service injuries aggravated his existing left shoulder disorder. A. Applicable Law At the outset, the Board observes that active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). Active duty training includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). Inactive duty training is defined as duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). In general, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). Service connection for certain chronic diseases, including arthritis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). However, presumptive periods do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Service connection generally requires credible and competent evidence showing: (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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. For the showing of 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is listed in 38 C.F.R. § 3.309(a), and therefore, service connection based on continuity of symptomatology is for application in this claim. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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, 492 F.3d at 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). B. Facts The Veteran asserts that his current left shoulder problems were caused or aggravated by an injury incurred in July 1984, during a period of active duty training in the Army National Guard. Specifically, he contends that while emptying the flatbed of a truck at an ammunition dump in Fort Benning, Georgia, he fell from a height of eight feet and landed on his back and left shoulder. In support of this claim, the Veteran submitted a graphical representation of the eight-foot-high trailer from which he reportedly fell and twisted the left side of his upper body. He has also testified that immediately following his line-of-duty injury he was prescribed medication and physical therapy and placed on restricted duty for two days. See August 2010 BVA Hearing Transcript, pages 8- 10. The Veteran has further testified that, despite this treatment, he continued to experience "excruciating" left shoulder pain throughout the remainder of his National Guard service. Id. The Veteran's account of a left shoulder injury is corroborated by his National Guard records, which report that in July 1984 he suffered a fall in the line of duty, and thereafter sought treatment for left shoulder pain. Significantly, however, contemporaneous clinical testing and X-rays were negative for any limitation of motion, soft tissue deformities, or other abnormalities of the left shoulder joint. Subsequent National Guard records reveal that in August 1984, the Veteran again sought treatment for left shoulder pain. He reported that his symptoms had persisted for two weeks and were traceable to a prior history of excessive push-ups. Clinical examination revealed discomfort along the medial superior angle of the left scapula, but was otherwise negative for any left shoulder abnormalities. Based on the results of that examination and the Veteran's subjective complaints, he was assessed with a muscle strain and placed on a regimen of painkillers, physical therapy, and temporary light duty. Less than one month later, the Veteran separated from the National Guard. The Veteran's post-service medical records reveal that he underwent a VA general examination in February 1993. At that time, he complained of low back pain and lower extremity radiculopathy, which he attributed to his July 1984 line-of-duty injury. Significantly, however, the Veteran did not report any history of left shoulder problems and none were found on clinical examination. Private medical records dated in January 2003 show that the Veteran was treated for residuals of a neck injury incurred the previous year at his civilian employer. Contemporaneous clinical examination revealed adequate range of motion in the shoulders, bilaterally. Subsequent private medical records, dated from June 2003 to December 2004, reflect additional treatment for neck pain and upper extremity radiculopathy. However, those records are negative for any specific complaints or clinical findings of shoulder problems. The record thereafter shows that on a private clinical assessment in October 2006, the Veteran reported a history of left shoulder pain, which he attributed to "lift[ing] a lot of wood at work." X-rays were negative for any evidence of fracture. Nevertheless, based on his reported symptoms, the Veteran was diagnosed with left shoulder cuff impingement/bursitis and prescribed Motrin and physical therapy. Beginning in March 2007, the Veteran again sought private medical treatment for left shoulder pain. This time, however, his symptoms were attributed to a contemporaneous civilian work injury in which he reportedly slipped and fell on his upper back. In April 2007, the Veteran had a magnetic resonance imaging (MRI) taken, which revealed evidence of torn distal biceps. Seven months later, in November 2007, he underwent left shoulder surgery to address his recurrent impingement syndrome and subacromial bursitis. In a follow-up private evaluation in August 2008, the Veteran reported an ongoing history of left shoulder symptoms arising from his March 2007 civilian job injury. However, in an April 2009 evaluation conducted in support of his application for Social Security disability benefits, he indicated that his left shoulder symptoms had all had their onset at the time of his July 1984 line-of-duty injury. The Veteran was afforded a VA examination in May 2011. The Veteran reported his in-service accident, as well as an additional accident in 2007. He reported stiffness, weakness, decreased speed of joint motion, grinding, locking episodes and tenderness of the left shoulder. After examination, the Veteran was diagnosed with mild degenerative changes of the left acromioclavicular (AC) joint and residuals of left shoulder surgery. The examiner opined that the Veteran's left shoulder disorder is less likely as not caused by his injury during service. The examiner explained that the Veteran's service records specifically stated that the injury was to the scapula area of the shoulder, while the Veteran's current complaints are his entire shoulder, including the AC joint and rotator cuff (RTC). The examiner noted that the Veteran' service records also specifically stated he had full range of motion and a negative left shoulder x-ray. Based on this evidence, the examiner opined that the Veteran' current disorder and limitations in his left shoulder occurred after his injury in 2007, and notes from that time stated that the injury occurred then and do not mention any previous injury or prior ongoing left shoulder problems. C. Analysis Initially, the Board notes that the Veteran has a current diagnosis of degenerative changes of the left AC joint and residuals of left shoulder surgery. The Board therefore finds that the evidence demonstrates a current disability, meeting the first requirement for the establishment of service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As for the second requirement for service connection, that a disease or injury was incurred or aggravated during service, the Board finds that a left shoulder injury was incurred during service. The Veteran's National Guard records report that in July 1984 he suffered a fall in the line of duty, and thereafter sought treatment for left shoulder pain. As such, Shedden element (2) has been satisfied. See Shedden, supra. Importantly, however, the Board finds that element (3) under Shedden, nexus, has not been satisfied. See Shedden, supra. Unfortunately, the totality of evidence indicates that the Veteran's current left shoulder disorder was not incurred during service. The only medical opinion of record indicates that the Veteran's current left shoulder disorder is due to his post-service accident in 2007. See August 2011 VA examination. The VA examiner explained that the Veteran's service records specifically stated that the in-service injury was to the scapula area of the shoulder, while the Veteran's current complaints are his entire shoulder, including the AC joint and RTC. Furthermore, the examiner noted that the Veteran' service records also specifically stated that at the time of the injury, he had full range of motion and a negative left shoulder x-ray. The Board notes that the Veteran's representative has argued that the August 20111 VA examination is inadequate; however, a review of the examination report shows that the examiner conducted a review of the claims file, took into consideration all applicable facts, and the opinion was provided in conjunction with an explanation of rationale. The Board observes, that the examiner, in essence, stated that regardless of whether the Veteran had shoulder pain since his time in service, that his current shoulder disability was not due to service, but due to post-service events. Therefore, the Board finds that the examination was adequate, and no further examination is warranted. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board recognizes that the Veteran is competent to report current symptoms, such as left shoulder pain, which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). Similarly, he is competent to report a history of left shoulder symptomatology since his period of qualifying active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). Moreover, his reported symptoms cannot be discredited by the mere absence of contemporaneous clinical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006). Nevertheless, the Veteran has not been shown to have the requisite clinical training to provide an opinion on diagnosis, causation, or aggravation of his current left shoulder problems. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, his lay assertions, standing alone, are insufficient to establish a nexus between his current disorder and his line-of-duty injury so as to warrant a grant of service connection in this instance. Importantly, although the Veteran has asserted that his current left shoulder disorder is a result of his in-service injury, there is no evidence in the claims file that supports this assertion. As noted previously, at the time of the in-service injury in July 1984, clinical testing and x-rays were negative for any limitation of motion, soft tissue deformities, or other abnormalities of the left shoulder joint. In August 1984, the Veteran's left shoulder symptoms were traceable to a prior history of excessive push-ups, and while clinical examination revealed discomfort along the medial superior angle of the left scapula, it was otherwise negative for any left shoulder abnormalities. Post-service, although the Veteran complained of low back pain and lower extremity radiculopathy in February 1993 that he attributed to his July 1984 line-of-duty injury, significantly, he did not report any history of left shoulder problems and none were found on clinical examination. The record thereafter shows that in October 2006, the Veteran attributed his left shoulder pain to "lift[ing] a lot of wood at work." In March 2007, the Veteran's left shoulder symptoms were attributed to a contemporaneous civilian work injury in which he reportedly slipped and fell on his upper back. In August 2008, the Veteran reported an ongoing history of left shoulder symptoms arising from his March 2007 civilian job injury. Additionally, the Board questions the overall credibility of the lay statements provided by the Veteran in support of his claim. The Veteran filed a claim for a back disorder in December 1992, which he asserted was a result of the same in-service accident in 1984 that injured his shoulder. During the August 2010 Hearing, the Veteran testified that he did not claim his shoulder problem at the time he claimed his back disorder because he believed the shoulder was part of his back claim. See August 2010 BVA Hearing Transcript, pages 25-26. The evidence, however, indicates that during the February 1993 VA examination for the back claim, he did not report any history of left shoulder problems and none was found on clinical examination. Furthermore, in a follow-up private evaluation in August 2008, the Veteran reported an ongoing history of left shoulder symptoms arising from his March 2007 civilian job injury, not from an in-service injury; yet in an April 2009 evaluation conducted in support of his application for Social Security disability benefits, he indicated that his left shoulder symptoms had their onset at the time of his July 1984 line-of-duty injury. Given the many contradictions in the Veteran's statements regarding the etiology of his left shoulder symptoms, the Board does not find the Veteran's statements to be credible. The Board does not dispute the fact that the Veteran has a current left shoulder disorder and that he had a left shoulder injury during service. However, because of the absence of a medical nexus between his current diagnosis and his injury in service, the Board finds that the evidence is against a grant of service connection. In sum, there is no competent medical evidence relating the Veteran's left shoulder disorder to service. As such, the preponderance of the evidence is against the claim and the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The CONTINUE ON THE NEXT PAGE Veteran's claim of entitlement to service connection for a left shoulder disorder must be denied. ORDER Entitlement to service connection for a left shoulder disorder is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs