Citation Nr: 1434751 Decision Date: 08/05/14 Archive Date: 08/08/14 DOCKET NO. 11-24 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to an evaluation in excess of 10 precent for right wrist disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1993 to October 1996, and he had a period of active duty for training in the Army Reserves from August 1990 to January 1991, as well as other periods of unverified service in the Army Reserves. These matters come on appeal before the Board of Veterans' Appeals (Board) from an October 2009 rating decision by the Department of Veterans' Affairs, Regional Office located in Houston, Texas (RO). In that rating decision, the RO denied a compensable evaluation for right wrist disability and denied service connection for right shoulder disorder. By the way of a May 2011 rating decision, the RO increased the assigned evaluation for right wrist disability from noncompensable to 10 percent disability, effective from July 14, 2009 (the date of claim for increased rating). Since the Veteran is presumed to seek the maximum available benefit for a disability, the claim for increased ratings remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to an increased evaluation for right wrist disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's current complaints of right shoulder problems are related to his period of service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA provided the Veteran with the notice required under the VCAA for his claim for service connection in an August 2009 notice letter. In that letter, VA also informed the Veteran of how VA establishes disability ratings effective dates. In light of the foregoing, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to issue additional VCAA notice letters. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist in the development of the claim. This duty includes assisting in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file consist of the Veteran's service treatments records and other pertinent documents discussed below. The Board acknowledges that VA has not afforded the Veteran with VA examinations relating to his claim for service connection for a right shoulder disorder. However, the Board finds that such examinations are not necessary to render a decision under the circumstances of this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The medical evidence does not reflect treatment for complaints of right shoulder disorder or for a current diagnosis of right shoulder disorder at any point during the period under appeal. Although the Veteran reports that he has experience right shoulder pain symptoms since a 1992 shoulder injury during a period of active duty for training (ACDUTRA), his service treatment records only show he sought treatment for complaints of left shoulder problems, and not right shoulder problems, at that time. The Board considers his current assertion that the shoulder he injured in 1992 was misidentified in the service treatment record is meritless. Moreover, a September 1993 service examination report shows that the Veteran's upper extremities were evaluated as normal and he denied any shoulder problems on the associated report of medical history. He also did not report any right shoulder problems during a December 1997 VA general medical examination, which comes only a year after his separation from service. There is no competent medical evidence of a current diagnosed right shoulder disorder. Additionally, even if the Veteran's complaints of right shoulder pain were sufficient to establish a current disorder, there is still no competent or credible evidence that indicates that there "may" be a relation between the Veteran's current diagnosed disorder and his service. There is no credible evidence of record that shows the Veteran complained of any right shoulder problems until he filed his claim for service in 2009, which comes more than a decade after his separation from service. As discussed in more detail below, his recent assertion of continuity of right shoulder problems is inconsistent with the contemporaneous medical evidence, and as such, the Board finds that his reported history of continuity of symptoms cannot support a link to service. While the Veteran believes he has a current right shoulder disorder that is related to service, he is not competent to testify to such matter because this question requires specialized knowledge, training, or experience due to the complexity of the internal body systems. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Moreover, the Veteran assertion of continuity of right shoulder problems is not credible, and none of his service treatment records reflects treatment or diagnosis of right shoulder. Simply stated, referral of the claims for examination or obtainment of medical opinions on the matters of service connection under the circumstances here presented would be an unnecessary act. 38 U.S.C.A. § 5103A(a)(2); see also McLendon, 20 Vet. App. 79. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, 18 Vet. App. at 119-120; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that 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 which was incurred in or aggravated by service. Id. 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 of 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). Service connection may be granted on a presumptive basis for certain chronic diseases, including hypertension, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Veteran seeks entitlement to service connection for a right shoulder disorder. He reports that he injured his right shoulder during a period of active duty for training (ACDUTRA), and he has continued to experience right shoulder pain since then. He feels that he should be awarded service connection for his right shoulder problems. Initially, the Board notes that the medical evidence of record does not reflect a current diagnosis for any right shoulder problems. None of his service or post-service treatment records reflects treatment for complaints of right shoulder problems and he has not been diagnosed with any current right shoulder disorder. The Veteran's subjective complaint of pain does not, by itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Board acknowledges that in the July 2014 informal brief, the Veteran's Representative indicated that the Veteran believed he suffered from a right rotator cuff injury; however, it is unclear whether the Representative is referencing the correct veteran in his informal arguement. Notably, the Representative cited to an October 2009 notice of disagreement, but the Veteran did not submit his notice of disagreement until July 2010 and he does not indicate a rotator cuff injury in that statement or in any other statement of record. An October 2009 report of contact only shows that the Veteran sought to have his claim expedited due to financial hardship. It does not appear to the Board that this Veteran has asserted a current right rotator cuff disorder. Regardless, there is no competent evidence of record that shows the Veteran has a current diagnosed right shoulder disorder. While the Court in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) held that a Veteran's statements can in limited circumstances establish a diagnosis; however, the requirements set forth in that case have not been met here. Here, the record does not shows that the Veteran has been diagnosed with any disability manifested by his reported symptoms of right shoulder problems at any time during the course of the appeal. In addition, there is no indication in the record that he has the medical expertise required to diagnose an internal disorder, such as one involving the shoulder joint and muscles. See 38 C.F.R. § 3.159(a). There is no competent medical evidence on file that shows a current diagnosis for right shoulder problems. Accordingly, element (1) a current disability, has not been met. Even, assuming, the Veteran's complaints of right shoulder pain were sufficient to demonstrate a current disability, the evidence of record must still support a finding of element (2) in-service injury or disease, and element (3), a medical nexus between the in-service incident and his current disability. Turning first to whether the evidence of record supports element (2), in-service disease or injury, a review of the Veteran's service treatment records show no indication that he was treated or diagnosed with any right shoulder problems during periods of ACDUTRA or active duty service. As noted above, a June 1992 service treatment record shows the Veteran sought treatment for complaints of left shoulder problems, and not his right shoulder at that time. A September 1993 service enlistment examination report shows that the Veteran's upper extremities were evaluated as normal and he denied any shoulder problems on the associated report of medical history. The Board acknowledges that the Veteran now alleges that his 1992 service treatment record misidentified the shoulder he hurt at that time. See December 2011 Veteran's representative's informal arguments. However, there is no indication in the record to suggest such a clerical error occurred. Rather, the 1992 service treatment record shows that the Veteran complained of left shoulder pain and his left shoulder was clinically evaluated at that time. There is no discrepancy in the 1992 service treatment note to suggest misidentification of the shoulder being treated at that time. Furthermore, the Veteran denied any right or left shoulder problems a year later on the 1993 medical history report. The Board finds that the Veteran's current contention that his 1992 in-service shoulder injury was misidentified as involving the left shoulder instead of right shoulder, to be meritless. None of the subsequent service treatment records show that Veteran complained of or sought treatment for right shoulder problems during his period of service. A separation examination report and associated report of medical history are not available. However, the Veteran was afforded a December 1997 VA general medical examination which comes only a year after his separation from service, and there is no evidence in that report that shows the Veteran complained of any right shoulder problems at time. The record does not show the Veteran complained of right shoulder problems until he filed his claim for service in 2009, which comes more than a decade after his separation from service. Competent evidence of record does not demonstrate that the Veteran's right shoulder complaints had an onset during his periods of service or within the first year after his separation from service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Also, there is no indication in the records that the Veteran incurred a right shoulder problem during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during his Army Reserve service. See 38 U.S.C.A. § 101(22), (23), (24); 38 C.F.R. § 3.6 (applicable laws and regulations permit service connection only for a disability resulting from disease or injury incurred in or aggravated coincident with ACDUTRA, or for disability resulting from injury during INACDUTRA). As discussed above, the June 1992 service treatment record from the Veteran's Army Reserve service only shows complaints pertaining to his left shoulder, and not his right shoulder. The Board has not reason to doubt the accuracy of that 1992 service medical record, and finds that the Veteran's current assertions regarding misidentification of the shoulder treated are meritless. Accordingly, element (2) is not met with respect to disease. The element (2), an in-service injury or disease, has not been satisfied. For purposes of completeness, the Board will also discuss element (3), nexus or relationship between his current right shoulder complaints and his period of service. Here, the weight of the competent evidence of record does not support such a finding. The Board notes that it must consider the competency and credibility of the Veteran's lay contentions to the extent that he asserts that he has experienced right shoulder pain since his period of service. It is noted that the Veteran is competent to attest to the onset and continuity of symptomatology, such as discomfort and pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. See 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). The Board, however, retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence. See Buchanan, 451 F.3d at 1335. Here, the record contains conflicting statements from the Veteran regarding the onset and continuity of his current right shoulder complaints. Notably, the record does not show that the Veteran reported the onset and continuity of his right shoulder problems since 1992 until well after he initiated his claim in March 2011 statement in support of the case. Notably, 1993 report of medical history shows that the Veteran specifically denied having or ever had experienced shoulder problems. Also, the December 1997 VA general medical examination report does not show that the Veteran complained of any shoulder problems at that time. His lack of complaints in 1993 and 1997 are strong indication that he did not feel anything was wrong with his right shoulder at those times. In light of the conflict between the Veteran's accounts as to the onset and continuity of his right shoulder problems, and the lack of complaints of right shoulder pain until 2009, the Board has to question the credibility of the Veteran's current assertions of onset and continuity of symptoms. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statement, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Based on the Veteran's conflicting statements, the Board finds that the Veteran's current assertions are not credible to the extent that he reports that the onset and continuity of his current symptoms. His statements cannot be used as evidence of onset or continuity of symptomatology since service to support an award of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). There is also no favorable medical nexus opinion of record that supports medical links between the Veteran's current complaints and his period of service. Moreover, an examination to obtain such medical nexus opinion is not necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2). There is no objective medical evidence indicative of right shoulder problems in service or at separation, no evidence of continuity of treatment since service, no evidence of right shoulder problems until more than a decade after service, and no medical evidence linking the current complaints directly to service. A VA examination is not called for in this matter. See McClendon, 20 Vet. App. 79. Accordingly, none of the required elements to support an award of service connection have been met and the Veteran's service-connection claim for right shoulder disorder fails on these bases. The benefit of the doubt rule is not for application because the evidence is not in relative equipoise. ORDER Entitlement to service connection for a right shoulder disorder is denied. REMAND The Veteran seeks entitlement to an evaluation in excess of 10 percent for his service-connected right wrist disability. The Board finds that additional development is need prior to adjudication of his claim. A remand is needed to provide the Veteran with a new VA joint/wrist examination to evaluate the severity of his right wrist disability, status post right scaphoid fracture. Notably, the competent lay and medical evidence of record since the last September 2009 VA examination suggests that his disability has worsened and it may involve more than manifestations of limitation of motion of the right wrist. In this regard, the Board notes that the subsequent VA treatment records show the Veteran complained of increased pain in his right wrist as well as symptoms of tingling and numbness. A September 2010 VA EMG report shows findings of mild median and ulnar neuropathy. It is unclear whether this additional neurologic involvement is a manifestation of his service-connected right wrist disability. The Board acknowledges that the Veteran failed to report to his last two scheduled VA examinations. The Veteran claims that he did not receive the notice of the first VA examination in October 2010 until after the date of the examination, and he failed to report to the rescheduled VA examination in July 2011, because he did not receive any notice of that rescheduled VA examination. However, the record contains a copy of a June 15, 2011 notice letter from the VA medical center informing the Veteran of the date of the July 5, 2011 reschedule VA examination. Notably, the record also contains a July 6, 2011 report of contact in which the Veteran stated he still had not been informed about when he was being rescheduled for a VA examination and there is no indication in that July 2011 report of contact that the Veteran was informed that he just missed the rescheduled exam by a day. In light of the Veteran's reports that he did not received notice of his rescheduled July 2011 VA examination as well as the lack of information in the July 2011 report of contact, the Board finds that he has provided good cause under 38 C.F.R. § 3.655(a). Moreover, the Board finds that the record does not contain sufficient contemporaneous for rating purposes or sufficient evidence for adjudication of the increased rating claim. Therefore, the Board determines that it is necessary to reschedule the Veteran for the examination. See 38 C.F.R. § 3.159(c). The Veteran is cautioned, however, that failure to report for any scheduled examination without explanation may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). On remand, the Veteran's claims folder should be updated with his VA treatment records since September 2010. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to confirm his current address and the best means to inform him of his upcoming VA examination. The Veteran has previously indicated that due to his work as a long-distance trucker, the best means to contact him was via a phone call. It should be recorded in the record that the Veteran was informed of the date of his rescheduled VA examination via a phone call. 2. Obtain all the Veteran's outstanding VA treatment records from September 2010 to present, and associate those records with the claims folder. 3. After the above development has been completed, schedule the Veteran for an appropriate VA examination to determine the severity of his right wrist disability. The claims folder should be made available to and reviewed by the examiner. All necessary tests, including X-rays if indicated, should be performed. The examiner should identify the findings related to the service-connected right wrist disability and fully describe the extent and severity of those symptoms. The examiner should report the range of motion of the right wrist, in degrees. The examiner should specifically note and discuss in detail whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should state whether there is objective evidence of anklyosis of the right wrist and if so, the degree of such anklyosis should be discussed. The Veteran has complained of numbness, tingling and decreased grip strength in his right hand. He has also been diagnosed with mild median and ulnar neuropathy. The examiner should determine whether the Veteran has any neurological disability/residuals associated with his service-connected right wrist disability. If so, the specific nerve(s) affected should be specified, together with the degree of paralysis caused. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. After completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal. If the benefits on appeal remain denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs