Citation Nr: 1606038 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 11-22 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to September 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In February 2012, the Veteran withdrew his request for a hearing before a decision review officer. In August 2013, the Board remanded this matter for additional development. As discussed below, the requested development has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). FINDING OF FACT The Veteran's current left shoulder disability did not have onset during his active service, arthritis of his shoulder did not manifest within one year of separation from active service, and his current shoulder disability was not caused by his active service CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1111, 1112, 1113, 1131, 1137, 1153, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303(c), 3.306 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). The duty to notify was satisfied by way of a letter sent to the Veteran in May 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The letter further notified the Veteran that a disability rating and an effective date for the award of benefits would be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA examination in July 2010; however, the opinion is inadequate for rating purposes because the examiner did not address whether the pre-existing shoulder disability was aggravated by service or provide an opinion addressing the etiology of the mild degenerative changes of the glenohumeral joint. The Board remanded this matter in August 2013 to allow for the scheduling of a VA examination to obtain an opinion addressing the etiology of the Veteran's left shoulder disorder. In September 2013, the Veteran was notified that the nearest VA medical facility would schedule him for an examination. The Veteran was informed that if he failed, without cause, to report for the examination, his claim would be rated based on the evidence of record or even denied. A VA examination was scheduled; however, the Veteran failed to report. It appears that the VA facility had an incorrect mailing address on file and that the Veteran did not receive notification of the examination. After speaking with the Veteran and confirming his mailing address, the VA facility rescheduled his examination. The Veteran failed to report for the rescheduled November 2013 examination. The Board points out that the supplemental statement of the case provided to the Veteran in January 2014 included a citation to 38 C.F.R. § 3.655 and clearly informed him of his failure to report to two scheduled examinations and the potential negative effect that it could have on his claim. The Veteran has had over two years to respond. However, he did not request an additional examination and through his representative, he indicated in February 2014 that he did not have any additional evidence or argument to submit. He instead requested that his appeal be forwarded to the Board. Consequently, the Board finds that the duty to assist has been satisfied and that the Board's remand directives from the August 2013 remand order have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. II. Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the purposes of § 1110 every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. 3.304(b) (2015). "If a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case [38 U.S.C.A.] section 1153 applies and the burden falls on the veteran to establish aggravation." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In the instant case, the question of preexistence of a shoulder injury has been raised. An explanation of this is being provided so that the Veteran may understand the case in light earlier documents sent to him. Ultimately, the Board need not determine whether the shoulder injury was present when he entered service and need not determine whether, if it was present, it was not aggravated by his active service. An opinion on the in-service element of this case would not change the outcome because the preponderance of evidence shows that, even if the in-service element is met, the preponderance of evidence shows that the nexus element is not met. Service treatment records reflect that on February 1982 enlistment examination, no shoulder disability was reported or diagnosed. In August 1982, the Veteran stated that he pulled his left shoulder. He reported an injury to his left shoulder in 1980, prior to service, while playing football. Since then, he had had recurring problems, stating that his shoulder would "go out." He had full range of motion of the shoulder and good strength, but a feeling of instability. X-ray was normal. The assessment was history of dislocated left shoulder with some mild continuing signs and symptoms. There was no left shoulder disability recorded at the time of the Veteran's service discharge. Thus, unless there is clear and unmistakable evidence that the Veteran's shoulder injury preexisted his acceptance into service and clear and unmistakable evidence that such was not aggravated by his active service, the Board must find that the Veteran was sound upon entrance into active service. In Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012), the Court provided a concise statement of law as to the effect of not rebutting the presumption of soundness, referring to Wagner v. Shinseki, 370 F.3d 1089 (Fed. Cir. 2003) and Horn v. Shinseki, 25 Vet. App. 231 (2012), as follows: If the presumption of soundness is not rebutted, then the finding is that the inservice element is met and, specifically, that an injury was incurred during active service. Although this may be illogical, this is what is required by law. Once the presumption of soundness is applied, if the Secretary is unable to rebut the presumption, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. See Horn, 25 Vet. App. at 236 ("When VA fails to carry its burden as to either preexistence or lack of aggravation," the veteran's entitlement to compensation is "determined upon the assumption that the [disease or] injury was incurred during service." (quoting Wagner, 370 F.3d at 1094 )); see also Wagner, 370 F.3d at 1096 ("[I]f the government fails to rebut the presumption of soundness ..., the veteran's claim is one for service connection [based on in-service incurrence]. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded."). In other words, if the presumption of soundness applies and is not rebutted, then, although perhaps sometimes irreconcilable to the facts of the case, the finding is that an injury was incurred during active service and the in-service element of a service connection claim is met. Of course, the nexus element and the present disability element must also be met in order for VA to grant service connection. The next relevant evidence shows that during his July 2010 VA examination, the Veteran stated that he initially injured his left shoulder playing high school football. He indicated that his shoulder seemed to dislocate more after the initial injury. He reported that he injured his left shoulder again during service when he fell, dislocating his shoulder. He was treated at a first aid station. Due to the disorder, he quit placing his arm over his head and engaging in high risk movements until he had surgery in 1995 to repair the rotator cuff. The examiner found that the Veteran's shoulder was normal; however, x-rays showed mild degenerative changes of the glenohumeral joint. The examiner did not address aggravation of the left shoulder disorder during service. In his notice of disagreement, the Veteran indicated that during service he was an orthopedic specialist and that his clinic doctors advised him to put off shoulder surgery as long as possible. He noted that he had surgery in 1995 but that the records were destroyed after 10 years and are unavailable for review. Notably, the Veteran's DD Form 214 indicates that his specialty in service was orthopedic specialist for three years and five months. This evidence shows that the Veteran has a left shoulder disability. For the purposes of this decision, the Board proceeds assuming that the in-service element is met as to these conditions. This is because even if the Board were to find that the preexistence prong of the 38 U.S.C.A. § 1111 was met, there is no clear and unmistakable evidence of record that any preexisting injury was not aggravated by service. The Veteran is competent to describe symptoms which he is able to perceive through the use of his senses, such as pain and dislocation of the shoulder during service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Moreover, he is competent to report that he fell during service and that as a result, his left shoulder was re-injured. There is no competent opinion rebutting the second prong of 38 U.S.C.A. § 1111. For these reasons, the Board concludes that there is insufficient evidence of record at this time to rebut the presumption of soundness in this case. That however does not end the analysis. The Board determines that the preponderance of evidence is against a finding that the nexus element has been met as to the claims of entitlement to service connection for a left shoulder disability. Consideration has been given to the Veteran's lay statements that attribute his current left shoulder disability to his in-service injury. However, a layperson without medical training is not qualified to render a medical opinion concerning the etiology or progression of degenerative changes to a joint. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). The Veteran, as a lay person, is not competent to diagnose mild degenerative changes of the glenohumeral joint or render a competent medical opinion regarding its etiology. Degenerative changes of the joint involve unseen systems processes and disease processes that are not observable by the five senses of a lay person; therefore, the Veteran is not competent to diagnose his disability or provide an etiology opinion. Such opinions as to diagnosis and causation involve making findings based on history, complaints and symptoms, signs, medical knowledge, and clinical testing results. The Board acknowledges that the Veteran was an orthopedic specialist 30 years ago in service. However, he does not have a medical degree and has since worked in the areas of construction and trucking, which would dilute any suggestion of his being competent to render a nexus opinion between his left shoulder disorder in service and current mild degenerative changes of the glenohumeral joint. His opinion is further clouded by the fact that it is inherently biased. See Pond v. West, 12 Vet. App. 341 (1999) (Board can consider appellant's own personal interest in the outcome of the case). As discussed above, the AOJ scheduled VA examinations to obtain an opinion from a VA examiner addressing the etiology of the Veteran's left shoulder disability. The examination report could have provided evidence in support of his claim. However, the Veteran failed to report for the scheduled examinations. The Board notes that in pursuing a claim, a claimant has some responsibility to cooperate in the development of all facts pertinent to his claim, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Board. App. 190 (1991). Indeed, in Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005), the Court clearly held that the claimant is obligated to cooperate in the development of evidence, and failure to do so puts him at risk of an adverse adjudication based on an incomplete and underdeveloped record. There is no evidence that the Veteran requested an examination be rescheduled, even after being given notice of the potential adverse effect that it could have on his claim. There is no evidence showing good cause for the failure to report. The Board must proceed to decision based on the evidence of record. 38 C.F.R. § 3.655 (2015). Based on the foregoing, while the Veteran had a pre-existing left shoulder disorder that was aggravated during service, there is no competent and credible evidence of a nexus between the in-service aggravation of the left shoulder and the current diagnosis of mild degenerative changes of the glenohumeral joint. As the preponderance of the evidence is against the claim for service connection for a left shoulder disability, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left shoulder disability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs