Citation Nr: 1603070 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 13-18 415A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for left shoulder disability. 3. Entitlement to service connection for lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran had service from September 1980 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2015, the Veteran testified at a video-conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of entitlement to service connection for lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During service the Veteran had left foot pain that was acute and resolved. 2. A chronic left foot disability was not manifest during service and arthritis was not manifest within one year of separation. Left foot pathology is not attributable to service. 3. During service the Veteran had left shoulder pain that was acute and resolved. 4. A chronic left shoulder disability was not manifest during service and arthritis was not manifest within one year of separation. Left shoulder pathology is not attributable to service. CONCLUSIONS OF LAW 1. A left foot disability was not incurred or aggravated by service and arthritis of the left foot may not be presumed to have occurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 2. A left shoulder disability was not incurred or aggravated by service and arthritis of the left shoulder may not be presumed to have occurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. § 3.159 (2015). The RO provided the required notice in a letters sent to the Veteran in October 2011. This letter informed the Veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence. The October 2011 letter informed the Veteran of the laws regarding the assignment of effective dates and disability ratings. Regarding the duty to assist, the record contains the Veteran's service treatment records, VA medical records, VA examination reports, the Veteran's lay statements, private treating source records, buddy statements from the Veteran's friends and family, and statements from the Veteran's representative. In order to ascertain the etiology of the Veteran's left foot and left shoulder symptoms, VA obtained a medical opinion in May 2012. This report reflects the examiner reviewed the Veteran's past medical history and provided an opinion supported by rationale and citation to the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the May 2012 report is adequate for adjudication purposes. See 38 C.F.R. § 4.2 (2015). The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Laws and Regulations Veterans are entitled to compensation from the DVA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For VA purposes, chronic diseases are listed in 38 C.F.R. § 3.309(a) and include arthritis. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Moreover, in certain cases, where a chronic disease becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Left Foot Disability The Veteran contends that he developed a left foot disability in service. During the October 2015 hearing, the Veteran stated that he hurt his left foot on active duty while playing basketball. The Veteran does not allege and the evidence does not suggest that he engaged in combat with the enemy. As such, 38 U.S.C.A. § 1154(b) does not apply to his claim. A May 1982 service treatment note indicates the Veteran reported an injury of his left foot two days prior. The Veteran was noted have mild swelling of the left foot. The assessment was contusion of the left lateral foot. The Veteran was instructed to elevate and apply ice to the affected area. In order to ascertain the etiology of the Veteran's left foot symptoms, VA obtained a medical opinion in May 2012. This report reflects the examiner reviewed the Veteran's past medical history and provided an opinion supported by rationale and citation to the evidence of record. The May 2012 VA examiner opined that the Veteran had degenerative changes at the first metatarsophalangeal joint status post resection of the first metatarsal head and sesamoid bone. The examiner opined that the Veteran's degenerative arthritis of the left foot was less likely than not incurred in or caused by the in-service injury to the left foot. The examiner provided support for their opinion in noting that there were no medical records documenting a chronic left foot condition in the immediate years following the Veteran's period of active service. Additionally, the examiner noted that a chronic left foot condition was not present in service. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran is competent to report observing symptoms of left foot pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). A lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds that the May 2012 VA opinion is probative and persuasive as to the etiology of the Veteran's left foot disability. The opinion was rendered by a medical professional with the expertise to opine on the matters at issue in this case. In addition, the examiner considered the Veteran's contentions (including his complaints regarding treatment in service for left foot pain) and based his opinions on a review of the claims folder as well as a complete physical examination. The May 2012 VA examiner also provided a well-reasoned rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board finds that the VA medical opinion from May 2012 is the most probative evidence of record and weighs against the claim. This opinion is of more probative weight than the Veteran's statements that his left foot disorder is related to his service. The Board further finds that the service records, medical records, and lay testimony do not establish that arthritis manifest during service or in the year after separation from service. Further, in view of the lack of any evidence of left foot disability manifestations for many years after discharge, the assertion of an in-service onset and ongoing manifestations is not credible. The evidence of record shows the Veteran's left foot pathology arose many years after service. The Veteran provided a November 2011 statement that he sustained a left foot fracture in service. The Veteran contends that he was treated for a left foot fracture at Womack Army Hospital for this injury and that he was fitted for a cast, prescribed crutches, and placed on a profile. Service treatment records show the Veteran was treated at Womack Army Hospital. However, follow-up treatment records show x-ray imaging of his left ankle was negative for a fracture. Additionally, the assessment at follow-up dated July 1981 was sprained left ankle. There are no service treatment records showing the Veteran sustained a fracture of the left foot. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Here, although there was one complaint of left foot pain during service, arthritis was not "noted" during service. Furthermore, the Veteran did not have characteristic manifestations sufficient to identify a chronic pathology. Here, there is positive and negative evidence. The positive evidence includes the Veteran's lay evidence. However, the in-service complaint of left foot pain was of brief duration, and there is no credible proof of a disability in proximity to separation. To the extent that there are lay opinions, including those of the Veteran, linking the Veteran's left foot disabilities to an in-service injury, the Board finds that the probative value of the general lay assertions are outweighed by the clinical evidence indicating a post-service onset. Based upon the more probative evidence of record, the Board concludes that a left foot disability was not manifest during service or to a compensable degree within one year of service and that such processes are unrelated to service. A preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Shoulder Disability The Veteran contends that he developed a left shoulder disability in service. During the October 2015 hearing, the Veteran stated that he hurt his left shoulder on active duty while playing football. The Veteran does not allege and the evidence does not suggest that he engaged in combat with the enemy. As such, 38 U.S.C.A. § 1154(b) does not apply to his claim. An October 1981 service treatment note indicates the Veteran reported an injury of his left shoulder, x-ray imaging of the left shoulder revealed no fracture. The assessment was left shoulder sprain of the acromioclavicular joint. The Veteran was prescribed a sling for one week. A November 1981 follow-up treatment note shows the Veteran had a good range of motion for the left shoulder with no evidence of swelling or edema. The Veteran showed evidence of slight tenderness on rotation of the shoulder. The assessment was bursitis of the left shoulder. Treatment records from the Livonia Medical Center dated June 2002 show the Veteran reported left shoulder pain of a duration of 6-8 months without a report of a specific injury. The Veteran underwent left shoulder arthroscopy in April 2004 during which a type 2 superior labral tear was identified and repaired. Additionally, during that surgery, a marked thickening of the subacromial subdeltoid bursa with impingement syndrome was identified. The Veteran reported that his work with the U.S. Postal Service required repetitive work and frequently work at or above the shoulder level. In a September 2004 narrative, the treating physician provided an opinion, stating that the Veteran's employment with the Postal Service could play a significant role in the development of his impingement syndrome and subacromial bursitis. The examiner offered support for their rationale, noting that the Veteran's employment with the Postal Service involved frequent work with his hands at or above the shoulder level. The examiner also opined that if the Veteran's employment required him to throw objects with the arm above the head, then his employment likely caused the labral tear. In order to ascertain the etiology of the Veteran's left shoulder symptoms, VA obtained a medical opinion in May 2012. This report reflects the examiner reviewed the Veteran's past medical history and provided an opinion supported by rationale and citation to the evidence of record. The May 2012 VA examiner opined that the Veteran had degenerative arthritis of the left shoulder status post-surgery for impingement syndrome. The examiner opined that the Veteran's degenerative arthritis of the left shoulder was less likely than not incurred in or caused by the in-service injury to the left shoulder. The examiner provided support for their opinion in noting that there was no medical records documenting a chronic left shoulder condition in the immediate years following the Veteran's period of active service. Additionally, the examiner noted that a chronic left shoulder condition was not present in service. The Veteran reported that he had been having left shoulder pain continuously since 2001. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Veteran is competent to report observing symptoms of left shoulder pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). A lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds that the May 2012 VA opinion is probative and persuasive as to the etiology of the Veteran's left shoulder disability. The opinion was rendered by a medical professional with the expertise to opine on the matters at issue in this case. In addition, the examiner considered the Veteran's contentions (including his complaints regarding treatment in service for left shoulder pain) and based his opinions on a review of the claims folder as well as a complete physical examination. The May 2012 VA examiner also provided a well-reasoned rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board finds that the VA medical opinion from May 2012 is the most probative evidence of record and weighs against the claim. This opinion is of more probative weight than the Veteran's statements that his left shoulder disorder is related to his service. The Board further finds that the service records, medical records, and lay testimony do not establish that arthritis manifest during service or in the year after separation from service. Further, in view of the lack of any evidence of left shoulder disability manifestations for many years after discharge, the assertion of an in-service onset and ongoing manifestations is not credible. Here, there is positive and negative evidence. The positive evidence includes the Veteran's lay evidence as well as statements from the Veteran's friends and family. However, the in-service complaint of shoulder pain was of brief duration, and there is no credible proof of a disability in proximity to separation. To the extent that there are lay opinions, including those of the Veteran and his friends and family, linking the Veteran's left shoulder disabilities to an in-service injury, the Board finds that the probative value of the general lay assertions are outweighed by the clinical evidence indicating a post-service onset. The evidence of record shows the Veteran's shoulder pathology arose many years after service. We find it highly probative and credible that when he initially sought treatment in June 2002, he reported a history of shoulder pain of a duration of six to eight months rather than an in-service history. Additionally, the evidence from the Livonia Medical Center indicates that the Veteran's left shoulder pathology is of a post-service occupational nature. The Board finds there was a credible report of recent onset and any assertion of on-going symptoms since service is far less credible than the above stated evidence. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Here, although there was one complaint of left shoulder pain during service, arthritis was not "noted" during service. Furthermore, the Veteran did not have characteristic manifestations sufficient to identify a chronic pathology. Based upon the more probative evidence of record, the Board concludes that a left shoulder disability was not manifest during service or to a compensable degree within one year of service and that such processes are unrelated to service. A preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left foot disability is denied Service connection for a left shoulder disability is denied REMAND The Board finds that an addendum opinion is necessary to address a factual discrepancy in the May 2012 VA examination opinion in regard to the claims for service connection for a lumbar spine disability. In their May 2012 opinion, the VA examiner opined that the record did not indicate any treatment for a lumbar spine condition in the immediate years following the Veteran's separation from service. The Veteran submitted records from the Detroit VA Medical Center dated January 1986 that show x-ray imaging results of the thoracolumbar spine revealed a mild compression deformity with anterior wedging of the T12-L1 levels. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who provided the May 2012 VA opinion, if available, to provide the following opinion after a review of the record of evidence, including the January 1986 VA imaging results and treatment records: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has a lumbar spine disability that was incurred during active service? If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion should be rendered by another qualified examiner. 2. Thereafter, re-adjudicate and if the benefits sought on appeal remain denied, issue an appropriate supplemental statement of the case. 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 2014). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs