Citation Nr: 1603926	
Decision Date: 02/03/16    Archive Date: 02/11/16

DOCKET NO.  12-16 492	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for a right ankle disability. 

2. Entitlement to service connection for a right shoulder disability. 


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

E. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active military duty from November 1976 to May 1977. His Point Credit Summary shows he served in the Air Force Reserve from September 1976 to June 2002. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In July 2014, the Veteran testified before the undersigned at a Videoconference hearing. A copy of the transcript has been reviewed and associated with the file. 

This case was remanded in November 2014. 


FINDINGS OF FACT

1. The weight of the evidence is against a finding that a right ankle disability was manifested during service, within one year of service or is otherwise related to the Veteran's service. 

2. The weight of the evidence is against a finding that a right shoulder disability was manifested during service or is otherwise related to the Veteran's service. 


CONCLUSIONS OF LAW

1. The criteria for an award of service connection for a right ankle disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 

2. The criteria for an award of service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

In a May 2009 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2015). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015). Relevant service treatment and other medical records have been associated with the claims file. In January 2010, the Social Security Administration (SSA) stated it had no records available for the Veteran, who was given notice of this fact by VA in August 2010. 

The Veteran did not receive a VA examination for his claims of service connection. A VA medical examination or opinion is necessary if the information and evidence of record does not contain sufficient evidence to decide the claim, but there is: (A) competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (B) evidence establishing that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309 and 3.313, manifesting during an applicable presumptive period (provided the claimant has the required service or triggering event to qualify for that presumption); and (C) evidence indicating that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4)(i)(A)-(C) (2015). Part (C) could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service. 38 C.F.R. § 3.159(c)(4)(i)(C)(ii) (2015).

It is undisputed that the Veteran has diagnoses involving the right ankle and shoulder. However, as explained further below, the Board finds there is no evidence of an event, injury or disease in service or an indication that the current disabilities may be related to service; instead the Board finds that there is a lack of competent and credible evidence on this matter. Therefore, an examination or opinion is not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

In November 2014, the Board remanded this claim for updated VA treatment records; a search for line of duty (LOD) records and service personnel records; Homestead Air Force Base (AFB) Hospital recs from 1977 or 1991 (depending on LOD records found); notice to the Veteran if no records were found; and a VA examination if the in-service injuries were confirmed. 

After remand, updated VA treatment records were requested.  However, no new records were found. No LOD records were found, although a full set of service personnel records are in the file. These records do not support that LOD reports were ever created. Further, while no hospital records are in the file, the Board notes that no Homestead Air Force Base Hospital exists or ever existed. The Veteran was notified of the lack of records and given the opportunity to submit further records in November 2015; no further records were submitted. As no further evidence was received to support the claim, no VA examination was necessary. The Board finds that there has been substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). 

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the July 2014 Board hearing shows the Veteran gave information regarding his claims and responded to questions aimed at determining whether further information was needed to substantiate the claim. The Veteran, who is represented, has not raised complaints regarding the conduct of the hearing. The Board finds the duties to notify and to assist have been met. 

Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). 

Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (IDT) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state, and members of a Senior Reserve Officers' Training Corp (ROTC) Program. 38 U.S.C.A. §§ 101(22), 316, 502, 503, 504, 505; 38 C.F.R. § 3.6(c)(3), (4).

Service connection generally requires evidence of (1) a current disability; (2) lay evidence of 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a) and includes arthritis, but not rotator cuff tendonitis. See, Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Continuity will be considered for arthritis. 

If certain chronic diseases (such as arthritis) become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disability during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). 

The Board must determine the value of all pertinent lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves three steps: competency, credibility and weighing the evidence as a whole. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means 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 that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2015). 

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, Footnote 4 (Fed. Cir. 2007). 

The Board must then determine if the evidence is credible; in determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Right Ankle

The Veteran contended in his April 2009 claim that he has a right ankle disorder due to his service. He stated he had no separation examination. He stated he entered active duty in August 1976. 

As noted above, however, the Veteran's personnel records support that he served on active duty from November 1976 to May 1977 and then had further Reserve service until 2001 (see February 2001 Air Force Reserve Personnel Center document showing he was assigned to the retired reserve in June 2001 and December 27, 2003 Air Force Air Reserve Personnel letter stating he was placed on the Air Force Retired List.

In a January 2010 statement (written on a VA appeal form), the Veteran stated he had medical problems "while on active status due to change of different environment (sic)." Another statement simply stated he had continuing therapy for his ankle and shoulder that was overlooked. On his May 2012 appeal form, the Veteran stated that while on drill status he injured his ankle while performing physical training; the ankle twisted and he fell. As a result of the fall, he injured his right shoulder; he was taken to Homestead AFB. He was on light duty for three months.

At the July 2014 Board hearing, the Veteran's representative stated the evidence shows the Veteran injured his right ankle but acknowledged no service treatment records documented the injury. (Transcript, pp2-3.) The Veteran reported he was at Homestead AFB doing an exercise and he fell and was unconscious for 20 minutes. (Transcript, p 3.) He stated he could not walk but was picked up and taken to the hospital. Id. X-rays were taken of the right ankle, ribs and shoulder. Id. He stayed in the hospital for a couple of days. Id. Afterward, he wore tennis shoes and a brace to support his ankle. Id. He received follow up treatment for the ankle. Id. His right ankle still hurt and he still worse a brace. (Transcript, p 4.) The Veteran stated he was hospitalized at Homestead AFB. Id. He was told there were no records, but his supervisor wrote a statement for him. (Transcript, p 5.) He thought his unit completed a LOD, but there were no records. (Transcript, p 6.) He did not remember when he was in the hospital, but it was summertime in 1977. Id. The representative noted his ankle and shoulder diagnoses in 2009, but no prior treatment; the Veteran knew of no other evidence. (Transcript, p 7.) The Veteran stated that between 1977 and 2004 he was seeing a family doctor who he told about his problems but there was no specific treatment at the time. (Transcript, p 13.) 

In July 2009, H.B., a fellow soldier wrote that he recalled the Veteran wearing white tennis shoes in military clothing. H.B. recalled that the Veteran fell during a unit exercise "while playing war game on base (sic). He was excuse from wearing combat boot (due to) ankle problems and do (sic) to the fall he had a bruise shoulder (sic)." 

Upon entry into service in August 1976, a Report of Medical Examination (RME) showed normal upper and lower extremities; the Report of Medical History (RMH) showed no significant medical history. This was also the case with RMEs from August 1977 and September 1979. In May 1982, the Veteran denied arthritis or joint deformity in an RMH.  A September 1983 RME showed a normal clinical evaluation of the lower and upper extremities. In an October 1990 annual medical certificate the Veteran reported no medical problems; this was also true as to other annual medical certificates throughout the 1990s. An August 1997 RME again showed normal lower and upper extremities. In A dental record from the same month the Veteran denied swollen ankles or arthritis. Also an August 1997 RMH shows the Veteran denied having foot trouble, arthritis, bone/joint deformity, and a painful/trick shoulder. 

Post-service, a May 2009 X-ray of the right ankle showed the Veteran had mild osteoarthritis at the tibiotalar joint as well as dorsal aspect of the midfoot joints. He also had calcaneal spurs. In May 2009 Tricare records, the Veteran stated his ankle pain was related to a fall in 1991 at Homestead AFB; ankle joint pain was noted. A June 2009 Tricare record noted that the ankle X-ray showed some arthritis. In February 2010, a Tricare record again noted the Veteran complained of pain in the right ankle that bothered him since the fall in 1991. Also, he complained of right shoulder pain. 

The Veteran is competent to report an injury in service to the right ankle. 38 C.F.R. § 3.159(a)(2). However, the Board finds there are inconsistencies with the Veteran's assertion of an injury to the right ankle; the Veteran reported injuries occurring at two different times (1977 and 1991), the records repeatedly show no sign of injury and records also show that the Veteran denied treatment, complaints or diagnoses for a right ankle problem. The Tricare records showing report of injury were created years after the reported injuries. Caluza, 7 Vet. App. 498. In view of the entirety of record, the Veteran's assertions regarding an injury in service are assigned less weight.

Similarly, the Board finds H.B.'s statement to be vague and nonspecific about what H.B. observed and when or where any injuries took place. The statement is also assigned little weight. Id. 

The Board may weigh a claimant's lay statements against the absence of contemporary medical evidence. Fountain v. McDonald, 27  Vet. App. 258, 272 (2015); Buchanan v. Nicholson, 451 F.3d 1331, 36-37 (Fed. Cir. 2006). However, it must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). The absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur. AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (internal citations omitted). For example, a foundation may be laid by establishing a medical reason for why a doctor would make a particular entry in regular treatment records. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (The foundation for such a finding is: (1) the relevant records appear complete, and (2) the fact would have been recorded if observed). 

Here, if it was true that the Veteran suffered a fall, injuring his right ankle and shoulder in the summer of 1977 (as he testified at the Board hearing, Transcript, p 6), the records show that he denied any further problems in these areas for years. Further, in May 2009 and February 2010 he reported to Tricare personnel that his problem was related to a fall in 1991. Either way, neither injury is documented and no residuals are shown despite repeated prompts to report problems or injuries in the military as described above. 

Weighing the evidence on the entirety of the record, the Board finds the assertions of a LOD being created or of an injury in service to be not credible. Therefore, no VA examination is warranted. 

Given these findings, the Board finds no competent evidence that a right ankle disability was incurred in service, was present within one year of separation from active duty service or that there were continuous symptoms since service. See Shedden, 381 F.3d at 1167; Walker, 708 F.3d 1331; 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. On a direct and presumptive basis, the preponderance of the evidence is against the claim for service connection for a right ankle disability. The reasonable doubt doctrine is not for application and the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). 

Right Shoulder

As noted above, the Veteran stated he injured his right shoulder in service. Specifically, in his May 2012 appeal form, the Veteran stated that while on drill status he injured his ankle and as a result of a fall, also injured the right shoulder. At the July 2014 Board hearing, he described the fall and then stated his shoulder still tingles (Transcript, p 4). 

Service treatment records show that the Veteran repeatedly denied having a painful or trick shoulder or elbow in service (see August 1977, September 1980, May 1982 December 1991, and August 1997 RMHs). Also clinical evaluations of the upper and lower extremities were found to be normal (see December 1991 and August 1997 RMEs). On an October 1999 annual medical certificate, he reported only dental problems. 

Post-service, in a May 2009 Tricare appointment, the Veteran reported a fall in 1991 at Homestead AFB. In a May 2009 Tricare record, he also complained of right shoulder pain with movement. The record stated: 

No trauma but he has been doing some weightlifting exercises. No numbness, weakness or fever. He has had the pain on and off over several weeks. He also [complaints of] right shoulder pain that has been also intermittently hurting him for months. No trauma, fever, numbness or weakness. No swelling or current meds. [Diagnosis] tendonitis rotator cuff. 

An X-ray from the same month showed right acromioclavicular joint hypertrophy with subacromial spur formation and findings which could be consistent with impingement tendinopathy. In June, a Tricare record stated problems were noted tendonitis rotator cuff and X-rays showed small spur. 

Regarding an injury in service, the Board's findings are the same as those noted above in the discussion of the claim of service connection for a right ankle disability. Again, while the Veteran is competent to report a shoulder injury and symptoms, the documentary evidence contradicts his assertions. H.B.'s statement of a bruised shoulder is nonspecific and is also contradicted by the denials of right shoulder problems in service and the negative clinical evaluations of right shoulder findings. 38 C.F.R. § 3.159(a)(2); Caluza, 7 Vet. App. 498.

Again, weighing the evidence on the entirety of the record, the Board finds the assertions of a LOD being created or of an injury in service to be not credible. Therefore, no VA examination is warranted. There is no competent evidence that a right shoulder disability was incurred during a period of active service. See Shedden, 381 F.3d at 1167. The preponderance of the evidence is against the claim for service connection for a right shoulder disability. The reasonable doubt doctrine is not for application and the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 



ORDER

Service connection for a right ankle disability is denied. 

Service connection for a right shoulder disability is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs