Citation Nr: 1606596 Decision Date: 02/22/16 Archive Date: 03/01/16 DOCKET NO. 03-24 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for right shoulder disability. 2. Entitlement to service connection for cervical spine disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 to November 1971, and from June 1974 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction over the claims file currently resides with the Reno, Nevada RO. In March 2004, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In a January 2005 decision, the Board denied service connection for right shoulder and neck disabilities. The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2007 Memorandum Decision, the Court vacated the Board's January 2005 decision denying service connection for right shoulder and neck disabilities and remanded the matter to the Board for further proceedings consistent with the decision. The Board remanded the matter for evidentiary development in February 2008, August 2011, August 2012, and May 2013. FINDINGS OF FACT 1. The Veteran's right shoulder disability, to include degenerative changes, was not manifest in service or within one year of separation, and is otherwise unrelated to service. 2. The Veteran's cervical spine disability, to include degenerative changes, was not manifest in service or within one year of separation, and is otherwise unrelated to service. CONCLUSIONS OF LAW 1. Right shoulder disability, to include degenerative changes, was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. Cervical spine disability, to include degenerative changes, was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.159 (2015). VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, the duty to notify was satisfied by a July 2001 letter sent to the Veteran prior to adjudication by the RO, and by a December 2002 letter notifying him of the RO's rating decision. The claim on appeal was last adjudicated in July 2013, following which the Veteran was notified with a letter and a copy of the Supplemental Statement of the Case. In January 2016, the Veteran waived RO review of newly submitted evidence. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claims, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claims. 38 C.F.R. § 3.159(c)(4). Initially, the Board notes that the Veteran's complete service treatment records are missing from the electronic file, despite the fact that prior VA decisions reference such records. When service records are missing through no fault of the claimant, VA has a heightened obligation to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing his claim, and to explain its decision. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). No presumption, however, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Here, multiple attempts have been made to obtain the missing records, with no success, and the Veteran has been notified of the missing records. Notably, the Veteran submitted a June 1977 Statement of Medical Examination and Duty Status referencing a motorcycle accident that he argues may have caused his right shoulder and neck disabilities; the Board concedes that such an incident occurred. Moreover, the Board may reasonably infer the content of relevant treatment records, particularly those involving the June 1977 motorcycle accident, in light of characterizations found in previous Board and RO decisions, at which time the service records appear to have been reviewed in full. In any event, the Board concludes that all procedures to obtain any missing service treatment records were correctly followed, and further attempts to obtain such records would be futile. See 38 C.F.R. § 3.159(c)(2), (3). In its April 2007 Memorandum Decision, the Court found that VA failed to make necessary attempts to obtain potentially relevant records of two separate incidents in service which could corroborate the Veteran's claims. For the reasons discussed below, the Board finds that the AOJ substantially complied with the Court's (and, subsequently, the Board's) remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Court first directed the AOJ to attempt to obtain police reports from a June 1977 motorcycle crash (noted above), which occurred while the Veteran was serving at Fort Bliss during his second period of active duty. In August 2008, a request was sent to the Fort Bliss Military Police Company asking for "the police report of a motorcycle accident in 1977" involving the Veteran. Requests were also mailed to the Beaumont Army Medical Center, the hospital where the Veteran reported receiving treatment following the accident. In January 2010, a memorandum from the Department of the Army reflected that military police reports involving the accident were not available. A June 2010 memorandum from the Army Crime Records Center likewise revealed no evidence of the complained-of incident. These actions complied with the Court's instructions and satisfy VA's duty to assist with regard to this incident. See 38 C.F.R. § 3.159(c)(2), (3). The Court also directed the AOJ to attempt to obtain records that would confirm the Veteran's reported encounter with a Vietnamese who tried to steal a United States Army ammunition truck. In its February 2008 remand, the Board instructed the AOJ to obtain the unit records for the 615th Military Police Company for the time period between October 1970 and November 1971. In requesting the records, however, the AOJ initially limited the date of the inquiry to February, March, and April 1971. A May 2010 response from the Defense Personnel Records Information System (DPRIS) indicated that, upon review, there was no evidence during this period which corroborated the Veteran's story. (The DPRIS response also noted that United States Military Casualty reports from January to December 1971 were reviewed but revealed no evidence that the Veteran was injured.) However, given the limited time period of the inquiry, these efforts were incomplete and did not fully satisfy VA's duty to assist. In subsequent remands, the Board has repeatedly requested a review of the Veteran's unit records for the remaining time periods-i.e., October 1970 to January 1971, and May 1971 to November 1971-in an attempt to verify his story concerning the stolen ammunition truck. In December 2012, the AOJ mailed a letter to the Modern Military Branch requesting review. A memorandum received in January 2013 from the National Archives and Records Administration (NARA) reflected that there was a "gap in daily journals covering from 1967 to the middle of 1972," and that "other available material does not appear to reference the incident described." The memorandum further noted that incidents of attempted larceny may be mentioned in desk blotters, but that "we would need a more exact date and location to search available records." In January 2013, a formal finding of unavailability was prepared, and the Veteran was notified that VA had been unable to locate records verifying his account of the truck theft incident. In its most recent remand (dated in May 2013), the Board requested that the Veteran be contacted to provide the exact date and location of the stolen truck incident so as to enable further attempts to locate the relevant records. Such a letter was mailed to the Veteran in May 2013, and he did not respond. See 38 C.F.R. § 3.159(c)(3) (providing that the claimant must provide enough information to identify and locate the existing records, including the approximate time frame covered by the records). The Board notes that in order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Moreover, VA's duty to assist is not always a one-way street, and if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Swann v. Brown, 5 Vet. App. 229, 233 (1993). In light of the above, the Board finds that VA has satisfied its duty to assist with regard to its attempts to obtain records of the reported ammunition truck theft. The Board also finds that VA has satisfied its duty to provide medical examinations in connection with the Veteran's claim. A VA examination was performed in November 2010, and the report from this examination contained thorough and detailed findings which included consideration of the Veteran's post-service treatment records and medical history, including his lay statements. The Board finds that this examination is adequate and additional VA examinations are not required. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board is aware that the Veteran requested a new VA examination in his Informal Hearing Presentation, dated in January 2016. However, the representative provided no cause for why such an examination should be provided. Moreover, as the Board concedes that the Veteran has current right shoulder and cervical spine disabilities, it is unclear how a new examination would benefit him. The Veteran presented testimony during his Travel Board hearing relating to his claims. During the hearing, the undersigned VLJ clarified the issues on appeal, explained the applicable law, and prompted the Veteran to ask any questions he might have regarding his claims. See 38 C.F.R. § 3.103. The Veteran did not identify any outstanding medical evidence pertinent to the issues herein decided. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements as to the claim decided herein. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C.A. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. 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); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that his current right shoulder and cervical spine disabilities, to include degenerative changes, are related to service. Specifically, he alleges that his symptoms are related to two separate in-service incidents: (1) an incident in Vietnam when he pursued a stolen ammunition truck and fell off the truck's running board; and (2) a June 1977 motorcycle accident. After a careful review of the record, the Board finds that the weight of the evidence is against a finding that the claimed disabilities are related to service. As noted above, the Veteran's complete service treatment records are not currently associated with the electronic claims file. In its January 2005 decision (later vacated), the Board noted that the service medical records (then of record) showed no treatment for or diagnosis of right shoulder or cervical spine disability. At his separation examination, in November 1971, the Veteran reported that he was in good health. Clinically, his upper extremities, neck, and spine were normal. At his enlistment examination in September 1973, the Veteran denied having a painful or trick shoulder, head injury, neuritis, or paralysis. A clinical evaluation revealed that his upper extremities, neck, and spine were normal. A June 1977 treatment note indicated that the Veteran was involved in a motorcycle accident. He was observed for head injury; the assessment was cerebral concussion and fracture of the right triquetrum (wrist). Routine physical examination in July 1977 revealed normal upper extremities, and the Veteran reported that his interval history was good. At separation, in May 1979, the Veteran denied ever having had swollen or painful joints, frequent or severe headache, arthritis, rheumatism, bursitis, neuritis, or a painful or trick shoulder. He reported that he was hospitalized in June 1977 for a head injury, concussion, and wrist fracture. The examiner reported that there were no sequelae. On clinical evaluation, his upper extremities, head, neck, spine, and neurologic system were normal. The examiner stated that there were no defects except for hearing loss. The Veteran submitted his claim for service connection in June 2001. In September 2002, X-rays were taken of his right shoulder and cervical spine. As for the right shoulder, there was no evidence of fracture or dislocation. Degenerative changes and narrowed joint spacing involving the acromioclavicular joint were noted, and subchondral sclerosis and osteophytes were observed. The impression was degenerative changes involving the acromioclavicular joint. As for the cervical spine, X-rays revealed moderate narrowing of the C6-7 intervertebral disc space and mild narrowing of the C5-6 disc space. Some endplate hypertrophic changes were noted, and there was slight narrowing of the neural exit foramina on both sides at the C6-7 level. The impression was mild degenerative changes. In his August 2003 Substantive Appeal, the Veteran stated that he had right shoulder pain and neck pain which was the result of the June 1977 motorcycle accident. During the March 2004 Board hearing, he testified that while serving in Vietnam, on one occasion a Vietnamese stole a "deuce-and-a-half" (2 1/2 ton truck). The Veteran stated that he "got up alongside the guy on the running board and tried to stop him" and then was "thrown off." Afterwards, he stated that he sought treatment and was told he had a "couple scrapes and bruises, taken an aspirin and go on down the road." He also testified that at the time of his motorcycle accident (in June 1977) he ended up "on the curb against his shoulder and my neck and my head, and every other thing, you know." He reported being told in the hospital that he was being treated for his back and shoulders for severe burns. He testified that his hand was in a cast and he had various abrasions and bruises. A VA examination was conducted in November 2010. The Veteran reported that he had right shoulder and neck pain, and repeated his belief that these symptoms were caused by the incident with the stolen ammunition truck and the June 1977 motorcycle accident. The examiner, after reviewing the file (including the service treatment records) noted that the service records were devoid of complaints, injury, or treatment for the Veteran's right shoulder or neck during active service. The examiner further noted that the first evidence of right shoulder and neck disability was in the early 2000s, after the Veteran had submitted his claim. Contemporaneous X-rays revealed mild degenerative changes of both the cervical spine and the right acromioclavicular joint. The examiner noted that similar logic applied to both the neck and shoulder claims with regard to etiology. The Veteran's statement that he was treated once from 1970 to 1977 for his shoulder suggested that the injury may have been acute but transient. There were no records of requests for treatment for the neck or shoulder for many years after discharge, although the Veteran had been treated for multiple other problems. In addition, the examiner noted that the September 2002 X-ray findings, considering the Veteran's age of 52 and occupation as a forklift operator for many years, were "consistent with a natural history of mechanical overuse superimposed on natural history of aging and less consistent with an old injury." Based on the above, the examiner opined that it was less likely as not that the Veteran's disabilities were caused by or due to any in-service injuries or accidents. Upon review, the Board can find no credible evidence in the record supporting the Veteran's claim that his right shoulder and cervical spine disabilities manifested during service, within one year of separation, or are otherwise related to any event or incident in service, including either the June 1977 motorcycle accident or the ammunition truck incident in Vietnam. The Board first notes that the preponderance of the evidence is against a finding that the Veteran engaged in combat while serving in Vietnam. His DD-214 Form indicates that his military occupational specialty was military policeman. There is no evidence to suggest, and the Veteran does not contend, that he received awards consistent with combat service. While he has reported that his duties involved, for example, patrolling the jungle in his capacity as a military policeman, he has never alleged that he was in combat. The closest thing to combat described by the Veteran appears to be the ammunition truck incident, but he has never been clear as to the date or location of said incident, or the identity of the thief. Upon review, even assuming such an incident occurred, the evidence of record fails to establish hostile engagement with the enemy. As such, the Veteran's lay contentions cannot be regarded as sufficient proof of in-service injury. See 38 U.S.C.A. § 1154(b). The Board recognizes that VA has a heightened obligation in light of the complicated development history and missing service treatment records, as discussed above. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, there is simply no credible evidence that the Veteran's right shoulder or cervical spine disabilities developed in service, or indeed for many years thereafter. In particular, the report from the November 2010 VA examination demonstrates that it is less likely as not that his current right shoulder and neck disabilities manifested in service or are otherwise related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The report reflects that the examiner conducted a thorough review of the record and provided detailed analysis in support of his findings. Apart from the Veteran's lay statements, there is nothing in the record to contradict these findings. The Board finds this opinion by a medical professional to be persuasive. The Board acknowledges the Veteran's lay contentions that his right shoulder and cervical spine disabilities were caused by the two in-service incidents discussed above. In this regard, he is certainly competent to report injuries within his personal observation. He is also competent to relate what he has been told by a medical professional. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Board finds that the Veteran's statements are both internally inconsistent and inconsistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). With regard to the ammunition truck incident (as noted above), the Veteran has never provided a clear description of when this incident occurred, who was involved, and even whether he injured his right shoulder and neck as a result. (During his Travel Board hearing, he specifically stated that he did not remember much about the treatment he received following this incident.) Similarly, he has not offered a convincing description of the nature of his injuries following the June 1977 motorcycle accident, nor how these injuries resulted in his current right shoulder and neck manifestations. In short, the Board finds that the VA examiner's reasoned opinion-in addition to the service treatment records and separation examination findings reflecting normal upper extremities, neck, and spine-outweighs the lay evidence suggesting that his current right shoulder and neck symptoms are related to the in-service incidents discussed above. As for arthritis, the Board notes that no right shoulder or cervical spine pathology nor arthritis was "noted" during service. Furthermore, in light of the record, to include the normal separation examination, the Veteran did not have characteristic manifestations sufficient to identify the disease entity (arthritis) during service or within one year of separation. Rather, the first documented evidence of right shoulder and cervical spine symptoms was in 2001, when the Veteran submitted his claim. This establishes the earliest post-service documentation as more than 20 years post-service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). For this reason, it can only be concluded that service connection on the basis of continuity of symptomatology cannot be established. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After weighing all the evidence, the Board finds the preponderance of the evidence is against the claims discussed above, and the benefit-of-the-doubt standard does not apply. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for right shoulder disability is denied. Service connection for cervical spine disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs