Citation Nr: 1436088 Decision Date: 08/12/14 Archive Date: 08/20/14 DOCKET NO. 11-04 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from November 21, 1978 to December 20, 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought. In November 2013 the Veteran testified at a Video-Conference hearing before the undersigned Veterans Law Judge. The Board remanded the case for further development in December 2013. The Veteran claims service connection for a left shoulder disability. The RO denied service connection for Sprengel's deformity with left shoulder strain. The scope of the Veteran's claim for service connection for a left shoulder disability includes any left shoulder musculoskeletal disability including neurologic involvement that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1(2009). FINDING OF FACT Sprengel's deformity is a congenital disease that pre-existed service and was not aggravated by service; and any acquired left shoulder disorder is not shown in service and is not shown to be related to an in-service disease or injury, or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1153, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). Notice and Assistance Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must 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 sent to the Veteran in July 2009 satisfied the duty to notify provisions. That letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. The Veteran was informed of the need to show the impact of the claimed disability on daily life and occupational functioning. The claim was subsequently readjudicated, most recently in a May 2014 supplemental statement of the case. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. Service treatment records, and VA and private medical treatment records, and Social Security Administration treatment records have been obtained; he did not identify any outstanding treatment records pertinent to the appeal. VA examinations were conducted in December 2009 and January 2014. The Board has reviewed the examination reports and finds that these examinations are adequate for a decision in this matter because the examiners reviewed the Veteran's medical history, recorded the Veteran's complaints, conducted an appropriate examination, and described the Veteran's left shoulder condition in detail. Therefore, the Board finds that the evidence is adequate for a decision in this matter. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim 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, any such failure is harmless. REASONS AND BASES FOR FINDING AND CONCLUSION Applicable Law In general, 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 , 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to inter-current causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Continuity of symptomatology under 38 C.F.R. § 3.303(b) (as a basis for entitlement to service connection), only applies to a condition that was first noted during service and that is one of the conditions that VA considers a "chronic disease," cited under 38 C.F.R. § 3.309(a). Only to the extent a disability is one of the cited conditions under 38 C.F.R. § 3.309(a), would 38 C.F.R. § 3.303(b) apply because only such a cited condition is considered a chronic disease under 38 C.F.R. § 3.309(a). See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Any chronic disease cited under 38 C.F.R. § 3.309(a), will be presumed to have been incurred in service if manifested to a minimum compensable degree of at least 10-percent disabling within the initial post-service year. This presumption, however, is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137; 38 C.F.R. §§ 3.307 , 3.309(a). Service connection also may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) . When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) ; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995). See also 38 C.F.R. § 3.310(b). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 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 . Congenital or developmental defects are not considered diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303(c). As such, a congenital or developmental defect generally may not be service connected as a matter of law; however, service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evidence and Analysis A November 1978 report of Screening Physical Examination for Army Recruitment, shows that the Veteran reported a medical history including that he had no painful or "trick" joint", and no loss of normal movement in any limb or joint. Subsequently, a November 1978 Army enlistment examination report and medical history report, dated one week before service began, show that the Veteran reported having painful or trick shoulder; and that his left shoulder had asymmetrical muscle development. On examination, the examiner noted the Veteran had an anomaly of the left shoulder (elevation of the left scapula), which was not considered disabling or painful. Service treatment records show that the Veteran was seen November 30, 1978 for complaints of pain in the left shoulder for one day. Examination findings showed that the trapezius muscle appeared larger than for the right shoulder muscle; there was tenderness to palpations, no discoloration; and the left scapula appeared higher than the right scapula. The impression was "muscle strain ? due to deformity." A November 30, 1978 X-ray report contains findings that no acute fracture or dislocation is seen; visualized clavicle appears intact; left scapula appears deformed. There is an accessory ossicle at the medial aspect of the scapula with pseudoarthrosis, which the examiner thought could be congenital and was not clinically significant. The Veteran was seen on December 1, 1978 in follow-up for complaints of left shoulder secondary to overhead ladder. Findings included obviously deformed scapula with no muscle movement of trapezius along the wing medial and distally. The Veteran had a decreased range of motion, which he reported was due to pain. The provider noted findings that the scapula appeared fixed and the left arm was much smaller than the right. The assessment was that the Veteran had a congenital condition of the scapula with resultant decrease in range of motion of the left arm. The plan was to refer the case to orthopedics for an evaluation of whether the condition existed prior to service. A December 8, 1978 narrative summary report, associated with medical board proceedings, shows that the Veteran reported a complaint of left shoulder pain and that he was injured during his first week of training. The Veteran reported that he had injured the left shoulder on a horizontal (overhead) ladder two days before the present treatment began. On review of past history and systems, the examiner recorded findings that the Veteran had a congenital deformity of the left scapula. After evaluation, the diagnosis was Sprengel's deformity, left shoulder. Private treatment records in March 2008 show that the Veteran was seen for left shoulder pain, which initially started three months before and was apparently precipitated by lifting. The Veteran reported that he had a congenital problem with his left shoulder that had been manageable until he recently injured his back. Now that his back was bothering him, he was finding that he has limited range of motion when he tries to use his left arm and shoulder. After examination the assessment was shoulder pain. X-rays were ordered. An April 2008 radiology report contains findings that the left shoulder examination demonstrated no significant abnormality; bony structures are normal throughout with normal shoulder joint. An April 2008 addendum to that report noted that review of left shoulder imaging demonstrated there was indeed a high positioned scapula, and the scapula and the transverse process of C7 are fused, such that the scapula is fixed to the C7 cervical vertebra. The provider stated that this is a congenital anomaly, and this would account for the inability of the Veteran to raise the left shoulder; otherwise, the left shoulder is normal. A subsequent April 2008 private treatment record contains an assessment of left shoulder pain due to congenital anomaly fusion of transverse process of C7 to high left scapula, with paresthesias of the left upper extremity. A subsequent April 2008 private treatment record contains an assessment of left frozen shoulder, and shoulder pain. In a May 2008 statement, Dr. Barry J. Kaplan, M.D., noted the Veteran had significant difficulty with pain on lifting the shoulder and was incapacitated by his pain syndrome. On examination the Veteran had a negative Spurling's maneuver. Dr. Kaplan concluded that the Veteran's symptoms were probably more secondary to shoulder impingement syndrome rather than cervical spondylosis. A subsequent May 2008 private treatment record shows that the Veteran reported a history of a prior "injury in 1978 to the left shoulder while in the service; this did resolve on its own. No palliative measures undertaken." The report noted that current X-rays of the left shoulder showed no acute osseous abnormalities and the Veteran did have a significant spur of acromion. The impression was that the Veteran had left shoulder pain, likely rotator cuff tear. The report of private X-ray and magnetic resonance arthrograms of the left shoulder shows that indications for examination were pain and rotator cuff tear. The concluding impression was that there was evidence of a tendinosis of the supraspinatus tendon without evidence of a tear. August and September 2008 private medical reports of left shoulder examinations concluded, respectively, with impressions of: left shoulder impingement syndrome, early adhesive capsulitis; and left shoulder impingement/adhesive capsulitis. During a December 2009 VA examination, the examiner stated that service treatment records noted that the Veteran was known to have Sprengel's deformity. The Veteran reported that in 1978 he fell while using the monkey bars for his left shoulder, and since then he has had pain there. He reported current complaints of daily pain associated with stiffness, locking, and weakness. After examination of the left shoulder, the examiner diagnosed left shoulder strain. The examiner opined that it is less likely as not that the Veteran's current left shoulder strain is caused by or a result of his active duty service. The examiner based this opinion on the rationale that the service treatment records documented a Sprengel's deformity, which the examiner noted to be indicative of a congenital malformation. Private treatment records include a January 2011 report of a follow-up visit for the left shoulder. That report contains left shoulder X-ray examination findings of spurring of the acromion; and concluded with an impression of left shoulder impingement. At a November 2013 Video Conference hearing the Veteran testified before the undersigned Veterans Law Judge that he had a left shoulder strain disability due to an injury in service; and that the injury resulted in his having to leave service after only one month after starting service. During a January 2014 VA examination, the Veteran reported a history that prior to his service his left shoulder was different from his right shoulder. He stated it had always been larger. He stated that during physical training in service he developed shoulder pain while trying to do pull-ups on monkey bars. He stated he underwent medical evaluation and was discharged after his shoulder condition was identified. The Veteran described a left shoulder decreased range of motion that had persisted for several years. After examination of the left shoulder, the examiner diagnosed a left shoulder Sprengel's deformity. The examiner stated that such condition occurs when the scapula (usually the left) does not descend properly during early fetal development; and that this condition may be associated with pain and physical limitations, as described by the Veteran in relation to the incident during his pull-up attempts in service. The examiner opined that this is a congenital left shoulder condition, which is not considered a disease or a defect; rather it is a failure of scapular descent during early fetal formation. The examiner opined that this condition was likely aggravated by military service for a short period of time (during pull-ups); however this condition was not likely aggravated beyond its natural course by service. The examiner opined further that this condition: was not likely aggravated for more than a couple of days by service; does not appear to have been subjected to any injury or condition during service that would have worsened it or contributed to it. The examiner concluded that he did not find that this condition is due to service or that it was aggravated beyond its natural progression by service. Analysis Service connection is not in effect for any chronic condition. Therefore service connection on the basis of either a disability that is proximately due to or the result of a service-connected disability or by aggravation of a nonservice-connected disorder that is proximately due to or the result of a service-connected disability, is not feasible. See 38 C.F.R. § 3.310(a) and as revised by 71 Fed. Reg. 52744 -52747 (final rule revising § 3.310 to conform to the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995) (en banc)). No left shoulder diagnosis on file is listed under 38 C.F.R. § 3.307(a). Therefore, entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is not available for any diagnosed left shoulder condition. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, the Veteran did not have a continuous period of active duty for ninety days or more. Consequently, the presumptions detailed in 38 C.F.R. § 3.309(a) are not for application in this case. See 38 C.F.R. § 3.307(a)(1) (requiring 90-days of active, continuous service for application of section 3.309) (2013). Service treatment records clearly show that the Veteran had a preexisting congenital deformity of the left shoulder scapula in service diagnosed as Sprengel's deformity of the left shoulder. Sprengel deformity is defined as a congenital elevation of the scapula, due to a failure of descent of the scapula to its normal thoracic position during fetal life. See Dorland's Illustrated Medical Dictionary 479 (32nd Ed. 2012). Findings in service also included an accessory ossicle of the scapula with pseudoarthrosis, thought to be congenital and not clinically significant. A November 1978 service treatment record does include an impression of a possible (?) muscle strain due to the deformity, indicating that a muscle strain may have resulted in part due to the deformity. This was associated with an incident in November 1978 when the Veteran was training on a horizontal ladder. The evidence on file does not show, however, that any permanent aggravation of the congenital shoulder condition occurred due to any superimposed injury or disease in service. The report of medical board proceedings in December 1978 concludes that the Veteran had Sprengel's deformity of the left shoulder that was not service aggravated. The first evidence of any further complaints of the left shoulder was about three decades after service. Private treatment records in March 2008 show that the Veteran reported he started having problems only three months before and that his current problems were precipitated by lifting. At that time the Veteran reported he had a congenital problems that had been manageable until his recent back injury. Thereafter, private treatment records show various diagnoses of left shoulder disability including: left shoulder impingement syndrome, early adhesive capsulitis; left shoulder pain, likely rotator cuff tear; and evidence of a tendinosis of the supraspinatus tendon without evidence of a tear. There is also an X-ray finding that the Veteran has a significant spur of the acromion. None of these left shoulder conditions were found until three decades after service ended in December 1978. There is no clinical evidence of any injury or disease in service resulting in any of these conditions now present, and no affirmative evidence in service of a chronic condition during service other than the congenital left shoulder condition. Further there is no continuity of symptoms shown after service associated with a present left shoulder condition, or opinion or other evidence to link any current left shoulder condition to service. There is no evidence that a current left shoulder condition is the result of or was aggravated by any disability connected to service. The opinion of the December 2009 VA examiner was that the Veteran's current diagnosis of left shoulder strain was not likely caused by or a result of his active duty service. The opinion of the January 2014 VA examiner was essentially that any in-service aggravation of the preexisting congenital left shoulder condition lasted for only a couple days, and not beyond its natural course. These opinions are probative as there are no other opinions on this matter and the opinions are consistent with the remainder of the medical evidence on file. While the Veteran believes that he has a left shoulder disability with an etiology related to his military service, he is not shown to be other than a lay person. As such, he has no competence to provide a medical opinion on this medically complex matter concerning the diagnosis and etiology of such conditions. The preponderance of the evidence is against the claim for service connection for a left shoulder disability; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a left shoulder disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs