Citation Nr: 1504828 Decision Date: 02/02/15 Archive Date: 02/09/15 DOCKET NO. 04- 38 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to an initial disability rating in excess of 10 percent prior to June 13, 2013 and in excess of 20 percent from June 13, 2013 for chronic left shoulder strain with degenerative joint disease. 3. Entitlement to a temporary total rating based on convalescence for a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink INTRODUCTION The Veteran served on active duty from September 1977 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. During the pendency of this appeal, jurisdiction of the Veteran's claims file was transferred to the VARO in Montgomery, Alabama. At the time of the September 2003 rating decision, the issue of entitlement to service connection for a right shoulder disability was adjudicated as an aspect of the Veteran's claim to reopen the issue of entitlement to service connection for a bilateral shoulder disability. In a June 2005 rating decision, the claim of entitlement to service connection for a left shoulder disability was reopened and service connection was granted. The Veteran perfected an appeal of the residual claim to reopen the issue of entitlement to service connection for a right shoulder disability. In November 2006, the Board denied reopening the claim. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2008 memorandum decision, the Court vacated the Board's decision and remanded the Veteran's claim for additional development. The Board subsequently remanded the claim to reopen the issue of entitlement to service connection for a right shoulder disability in order to comply with the Court's memorandum decision. Eventually, the Board reopened the Veteran's claim regarding the right shoulder in an August 2010 decision, at which time the Board also remanded the issue on the merits for further development. At the same time, the Veteran perfected an appeal of the June 2005 rating decision seeking an initial rating in excess of 10 percent for chronic left shoulder strain with degenerative joint disease. In May 2013, both the issues of service connection for a right shoulder disability and a higher evaluation for a left shoulder disability came before the Board. The Board remanded both issues again for development. While remanded, a July 2013 rating decision assigned the Veteran's left should disability a staged rating of 10 percent prior to July 13, 2013 and 20 percent effective July 13, 2013. The issues were returned to the Board, at which point the Board again remanded the issues in October 2013. That remand required the RO to attempt to obtain private treatment records, as well as obtain a medical nexus opinion regarding the right shoulder. A review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran has claimed entitlement to a temporary total rating based on convalescence for a service-connected disability in an April 2014 statement. As the rating of the service-connected disability is already on appeal, the Board considers this issue to be an element of the increased rating claim and will address it in the remand below. The issues entitlement to a higher initial disability rating for the left shoulder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The preponderance of the evidence shows that the Veteran's right shoulder disability did not have its onset in service or until many years thereafter, is not causally or etiologically related to service, and is not caused or aggravated by the left shoulder disability. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through VCAA letters dated June 2003, December 2006, June 2009, and September 2009, VA's notice requirements were met with respect to the issues addressed in this decision. The VCAA letters were received prior to the most recent adjudications by the RO, which cures any timing deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, private treatment records, VA examination reports, VA treatment records, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations and medical opinions in February 2011, March 2011, March 2012, May 2012, September 2014. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings. Therefore, the examination reports and nexus opinions are adequate to decide the claim. Thus, further examination is not necessary. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above 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 hearing, the Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The undersigned explained the issue on appeal and sought testimony from the Veteran regarding the manifestations of his disability. The undersigned also solicited information on the availability of any additional relevant evidence for development. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Service Connection - Right Shoulder Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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 his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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 v. Nicholson, 492 F.3d 1372, 1376-77. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran is not shown to possess any medical expertise and therefore any medical opinions he asserts are not of significant probative value. He is competent to report his symptoms, but his current assertions do not indicate anything more than a broad and vague statement that his current right shoulder disability is causally related to service or to his left shoulder disability. The Veteran's service treatment records show no complaints, treatment, or diagnosis of a right shoulder disability. Additionally, on the September 1981 separation report of medical history, the Veteran specifically noted no history of or current complaints related to painful joints. On the corresponding report of medical examination, the examiner noted normal upper extremities. On a subsequent August 1983 examination for enlistment into the Reserves, the examiner again noted clinically normal upper extremities. There is no evidence of an injury to the right shoulder in the service treatment records. Therefore, the Board finds that the Veteran's right shoulder disability did not manifest during service. Post-service, the only evidence relating the Veteran's shoulder disability to service are his lay statements. The Board finds that the Veteran's more recently-reported history of continued symptoms of a right shoulder disability since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of symptoms of a right shoulder disability. Inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The medical evidence of record weighs significantly against the Veteran's lay statements. VA treatment records dated March 2003 show an initial visit for evaluation of pain in the shoulders, which the Veteran noted had lasted for two years. In other treatment records, the Veteran reported a history of injury to his left shoulder during service, but did not note any history relating his right shoulder to service. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; 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). The Veteran was afforded multiple VA examinations. In March 2011, a VA examiner provided an addendum to the February 2011 examination. The examiner found that based on information available in service records, there is no mention of injury to the right shoulder. The Veteran was treated for left trapezius area pain and pectoral area pain. The examiner noted no history of injury to the right shoulder. Based on available information, the examiner opined that the right shoulder AC arthropathy and medial arch stenosis are less likely as not due to or a result of any treatment or specific injury in military service. In March 2012, the VA examiner found that the right shoulder was less likely than not proximately due to or the result of the Veteran's service-connected left shoulder condition. The examiner noted that the AC arthropathy may be the result of a traumatic injury with a direct blow to the shoulder. He noted however that all injuries in service were sustained to the left shoulder, not the right. The examiner found no clinical rationale to support the left pectoral muscle being causal of a right shoulder condition. The examiner noted that shoulder arthropathy is not likely the result of a strained pectoral muscle. In May 2012, the VA examiner found that the claimed condition was less likely than not incurred in or caused by service. The examiner noted left shoulder and left trapezius muscle complaints during service. He noted that there is no evidence of a right shoulder injury or complaints of right shoulder pain during service. In a September 2014 expert nexus opinion, the examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's right shoulder disability, currently diagnosed as the right shoulder AC arthropathy and medial arch stenosis, was incurred in or due to his active duty. The examiner also opined that it is less likely than not (less than 50 percent probability) that the Veteran's right shoulder disability was caused or aggravated by his service-connected chronic left shoulder strain with degenerative joint disease. With the exception of the initial entry in early 1978, which does not specify a side (left or right), just chest pain and back, all other entries are for injuries to the left side of the neck, chest, back, or shoulder musculature, and all are related to attempts to weight lift. The examiner found no complaints or evaluation of right shoulder injury while in active military service. The Veteran entered reserve military service without a history of a right shoulder disability, as documented on his September 1981 separation physical. The examiner made multiple attempts to find scientifically based medical literature to support the Veteran's assertion of injury to one shoulder causing or permanently worsening the other shoulder resulted, but could find no positive results. Although the Veteran reported onset of right shoulder pain in service when seen for his VA examination, the service treatment records are negative for documentation of chronic right shoulder symptoms and the Veteran denied painful shoulders at separation. The Veteran also did not report right shoulder symptoms for years after separation from service. Based on the above, it cannot be found that any current right shoulder disorder is either etiologically related to his period of service or to his service-connected left shoulder disability. Therefore, after weighing the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The medical evidence significantly outweighs the Veteran's unsupported lay statements that conflict with the Veteran's statement on his separation report of medical history. As the preponderance of the evidence is against the claim for service connection for a right shoulder disability, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a right shoulder disability is denied. REMAND The Board notes that the Veteran asserts entitlement to a temporary total rating based on convalescence for a service-connected disability in an April 2014 statement. The Veteran reported that he required surgery for his left shoulder. The record, both physically and electronically via Virtual VA, includes only a statement that the Veteran had surgery on April 15, 2014 and that he may have recovery from surgery up to one year's time. It does not include any further details regarding the Veteran's surgery or the level of disability experienced by the Veteran after his surgery. On remand, the RO should obtain all outstanding treatment records, to include VA, private, and physical therapy. Additionally, VA is required to conduct a comprehensive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, VA is required to afford the Veteran a VA examination to assess the post-operative severity of his service-connected disabilities of the left shoulder. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete a current release form for the RO to obtain the records at the University Orthopaedic Clinic and Spine Center, Bryan W. Whifield Memorial Hospital, and any physical therapy locations related to his left shoulder disability and any left shoulder surgery. Once the appellant returns the release form, the RO should attempt to obtain the records and associate them with the claims file. All attempts and responses should be documented in the claims file, and the Veteran notified of the inability to obtain the requested records. 2. After associating any outstanding records with the claims folder, schedule the Veteran for a VA examination to determine the nature, extent, and severity of the Veteran's service-connected left shoulder disability. The claims folder should be made available to and reviewed by the examiner. The examiner should clearly report the extent of the Veteran's disability in accordance with VA rating criteria, to include range of motion findings, and offer an opinion as to the level of occupational impairment caused by the left shoulder disability. The examiner should address any additional limitation of motion upon repetitive testing due to pain, fatigue, weakness, or other symptoms. 3. Then, readjudicate the appeal. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs