Citation Nr: 1517167	
Decision Date: 04/22/15    Archive Date: 04/24/15

DOCKET NO.  10-20 660	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a left shoulder disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Hinton, Counsel



INTRODUCTION

The Veteran had active service from August 1972 to December 1974.  He also had a prior period of active duty for training from January 1971 to June 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  The case was later transferred to the jurisdiction of the RO in Houston, Texas.

During the pendency of the appeal, the Veteran also perfected an appeal as to the disability rating assigned for bilateral hearing loss; however, the Veteran's representative withdrew that claim on the Veteran's behalf in April 2014.  Therefore, that claim is not on appeal before the Board. 


FINDING OF FACT

The Veteran does not have a left shoulder disability related to service.


CONCLUSION OF LAW

The criteria for service connection for a left shoulder disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014).

A standard letter sent to the Veteran in April 2007 satisfied the duty to notify provisions.

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c).

The Veteran's service treatment and personnel records have been obtained.  Post-service VA and private treatment records have also been obtained.  

Although a VA medical examination or opinion was not provided in connection with the claim, the Board finds that one is not necessary to make a decision on the claim.  As explained in the analysis section below, the evidence does not establish that the Veteran suffered an event, injury or disease in service or indicate that the claimed disability may be associated with service.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Thus, VA's duty to assist has been met.

II. Service Connection: Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014).  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).

To establish service connection, there must be sufficient evidence of a current disability; in-service occurrence or aggravation of a disease or injury; and a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1). 

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters which can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau, 492 F.3d at 1377. 

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.

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.  See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability).  Without proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

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 (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III. Evidence

The Veteran contends that he has a left shoulder dislocation that had its onset during service.  In the Veteran's March 2007 claim, he stated that he was injured in October 1974.  He stated that he was injured when he dislocated his left shoulder while exiting a landing vehicle tracked (LVT), and that since that time he had experienced severe pain to the left shoulder when it separates out of the socket.

In a March 2007 letter the Veteran's spouse stated that the Veteran struggles with his left shoulder joint coming out of place from the socket, which was caused by an injury in service; and that this condition had worsened over the years.

In a statement by J.L., who stated he had served with the Veteran, that writer stated that he had served at Camp Pendleton when the Veteran served there.  He stated that the Veteran was injured during the time they were both stationed at Camp Pendleton.  J.L. stated that the Veteran attempted to exit a LVT and slipped and fell, and thereby dislocated his left shoulder during an exercise.  He stated that the Veteran received medical attention from a Navy Corpsman and that the Veteran continues to have problems with these injuries, which occurred during a training exercise in Vancouver, Canada.

Service treatment records do not show treatment or complaints pertaining to the left shoulder.  Service treatment records show no indication of any injury involving the left shoulder and show no indication of any injury in October 1974.  The report of a December 1974 medical history shows no complaints of having had any left shoulder problems.  The Veteran reported he had not had painful or "trick" shoulder.  The report of a December 1974 separation examination shows that the clinical evaluation of the upper extremities, spine, and other musculoskeletal system was normal.

After service, private treatment records include a report of examination in September 2002, which records a medical history in which the Veteran reported he had not ever had painful or trick shoulder; or swollen or painful joints.  On physical examination the evaluation for musculoskeletal system was normal.  In a separate medical history and physical examination form dated in September 2002, the Veteran reported he did not currently have musculoskeletal problems involving difficulty fully moving his arms.

In a January 2004 private medical report titled Medical Surveillance Management Program-Health History and Physical Examination Form, the Veteran reported no medical history of any left shoulder condition.  On review of systems he reported he had not had a problem with musculoskeletal muscle pain, joint pain, or weakness in the arms.

In an April 2006 report titled Medical Surveillance Management Program-Health History and Physical Examination Form, the Veteran reported that he did not have a problem with joint pain in the last year.  On physical examination the evaluation for musculoskeletal system was normal.

IV. Analysis

Service treatment records show no indication of any left shoulder injury or chronic condition during service.  None of the post-service medical records show any complaints, findings, or diagnoses of a left shoulder disorder.  A present left shoulder disability is not shown during the pendency of the claim.  See McClain v. Nicholson 21 Vet. App. 319, 321 (2007). 

A diagnosis rendered prior to a claim period may be sufficient to constitute a current disability.  Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  In this case, however, none of the evidence in the service treatment records or medical records since service forms a basis for finding the existence of a current left shoulder disability during the claims period.  Therefore, the current disability element of the claim is not substantiated.

More importantly, the evidence does not establish that an in-service injury, disease or event occurred, or that there is any indication that the claimed disability is relate to service.  The Board finds other evidence of record more probative than the lay statements from the Veteran, his wife, and J.L.  The Board accords greater weight to the absence of information in the service treatment records regarding the left shoulder in combination with the normal separation examination and the Veteran's denial of reporting any shoulder problems.  Additionally, the post-service private treatment records are informative as they consistently document no problems with the left shoulder and normal physical examinations.

The Veteran is likely able to recognize if he has a broken bone.  See Jandreau, 492 F.3d at 1372.  A specific internal problem like a shoulder dislocation is less likely to be identifiable by a lay person, but symptoms such as pain would be.  The Veteran's wife and J.L. would likely be able to observe the Veteran experiencing pain, but would not be competent to identify a dislocation or other internal disability as that would be a complex medical question.  All in all, the Board does not find any competent statements referring to the left shoulder to be credible given the evidence identified above.  The statements are inconsistent with the medical evidence both from many years ago in service and with the more recent private treatment records in the 2000s.  Thus, the Board finds that the Veteran does not have a left shoulder disability related to service and there is not sufficient evidence to require a VA examination.

In sum, the preponderance of the evidence is against the claim of service connection for a left shoulder disability.  Thus, there is no doubt to be resolved; and service connection is not warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for a left shoulder disability is denied.




____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs