Citation Nr: 1612112 Decision Date: 03/25/16 Archive Date: 03/29/16 DOCKET NO. 10-16 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a left shoulder disability, claimed as degenerative changes of the left shoulder. 2. Entitlement to service connection for a right shoulder disability, claimed as degenerative changes of the right shoulder. 3. Entitlement to service connection for bilateral plantar fasciitis. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Gower, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1986 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and September 2011 rating decisions issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Denver, Colorado. The August 2009 decision confirmed and continued an October 2008 rating decision that severed service connection for right and left shoulder disabilities based on a finding of clear and unmistakable error in a December 2007 rating decision. The September 2011 rating decision denied service connection for bilateral plantar fasciitis. In October 2015, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Both the Veteran's Virtual VA and VBMS paperless claims files have been reviewed. The issue of entitlement to service connection for radiculopathy of the left arm has been raised by the record in the Veteran's October 2015 hearing testimony, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue of service connection for a left shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has a current right shoulder disability. 2. At the Veteran's Board hearing, prior to the promulgation of a decision in the appeal, he requested to withdraw his appeal on the issue of service connection for bilateral plantar fasciitis. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). 2. The criteria for withdrawal of an appeal by the Veteran have been met on the issue of service connection for bilateral plantar fasciitis. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The Board finds that all notification and development action needed to arrive at a decision on the above two claims has been accomplished. Through notice letters dated August 2007 and April 2011, the RO notified the Veteran of the information and evidence needed to substantiate his claims and of VA's duty to assist in developing his claims. These letters satisfied the requirements of the VCAA, and no additional notice is required. The Veteran was afforded VA examinations to evaluate his right shoulder disability in September 2007, with an addendum in February 2008, and in June 2009. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board finds the VA examinations are collectively sufficient, as they are predicated on consideration of the medical records in the claims file, as well as specific examination findings. The VA examiners considered the Veteran's report of his symptoms, provided a rationale for the findings made based upon the examination, diagnostic testing, and records reviewed, and provided findings sufficient to apply the rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination for the pending claim has been met. 38 C.F.R. § 3.159(c)(4). There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The evidence in the claims file includes multiple VA examinations, VA treatment records, private treatment records, and service treatment records (STRs). To the extent that any additional medical evidence exists, it is the Veteran's responsibility either to furnish it directly to VA or to identify it with reasonable specificity so that VA can obtain it. The Veteran has been accorded the opportunity and has done neither. Thus, the Board finds that VA has properly assisted the Veteran in obtaining any relevant evidence. As VA has satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. II. Service Connection for Right Shoulder Disorder Service connection may be granted for disability resulting from a disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. To establish entitlement to service-connected compensation benefits, a Veteran must show (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran states that he injured his shoulders spiking a volleyball in 2005, but his service treatment records do not document this incident. See Hearing Testimony. While in service, the Veteran complained of shoulder pain on several occasions. In May 1996, he complained of pain, localized to the area under the right scapula at the T5-6 level. He had tenderness on abduction of the right arm and decreased range of motion when bending to the left side or rotating the neck to the right. He was diagnosed with intercostal or subscapularis strain. Service Treatment Records (Vol. 2, VBMS 8/2/2007, pg. 24). In January 2005, the Veteran complained of knee and shoulder problems. See Service Treatment Records (Vol. 3, VBMS 8/2/2007, pg. 7). In November 2006, the Veteran stated in a Report of Medical Assessment that his knees and shoulders were bothering him. See Service Treatment Records (Vol. 2, VBMS 8/2/2007, pg. 7). In December 2006, the Veteran visited a private doctor, Dr. S, with concern about pain in his low sacral/low back area and bilateral shoulders. Dr. S conducted a spinal examination and recommended that the Veteran restrict duties that exacerbate his low back condition. See Dr. S Records (VBMS Medical Treatment Records 9/4/2007, pg. 24). In June 2007, the Veteran complained of pain in his shoulder joint (but did not specify which shoulder joint) and said he could not raise his arm. See Dr. B Records (VBMS Medical Treatment Records 1/13/2006, pg. 28). At the September 2007 VA examination, the Veteran had no redness, swelling, tenderness, or other abnormality of the right shoulder. His range of motion was normal, with external rotation at 97 degrees, internal rotation at 90 degrees, abduction at 175 degrees, and extension at 170 degrees. No pain was observed during range of motion. There were no additional limitations to range of motion after repetitive use. Two x-ray views of the right shoulder showed no focal osseous lesions. Glenohumeral and acromiohumeral intervals were preserved. There were no significant degenerative changes, and the visualized portion of the right upper chest was unremarkable. The impression of the x-ray was a negative study. The examiner stated that the examination was normal, and there was insufficient clinical information for a diagnosis related to bilateral shoulder condition, acute or chronic residuals thereof. In February 2008, the examiner added an addendum to the September 2007 examination, elaborating on the x-ray findings. The examiner stated that bilateral shoulder x-ray films from September 2007 did not show degenerative arthritic changes. The examiner stated that the impressions of unremarkable study and negative study were correct, and that these findings were indicative of a normal radiographic examination. The examiner reviewed the physical examination, and noted that the Veteran continued to have bilateral normal exams of the shoulders. Private records from May 2008 note the Veteran's complaints of bilateral shoulder pain. A handwritten note reads "x-rays knee/shoulder 'arthritis.'" Though this handwritten note is somewhat difficult to decipher, the quotation marks around "arthritis" suggest that this was based on the Veteran's report, rather than a diagnosis based on any objective findings. The record also notes "N/" range of motion and strength in the shoulder, which the Board interprets as normal range of motion and strength. See Dr. S Records (VBMS Medical Treatment Records 11/12/2009, pg. 2). At the June 2009 VA examination, the Veteran noted no problems with his right shoulder. He had no pain, weakness, stiffness, swelling, heat or other complaints, and had no flare-ups. He had occasional soreness at times, but it had no effect on his daily activities or his work. He stated he just "want[ed] to keep this on [the] books." His active and passive range of motion was tested, consistent, and within normal range. His forward flexion and abduction were both 180 degrees, and his internal rotation and external rotation were both 90 degrees. The VA examiner found insufficient clinical data to warrant a diagnosis of any acute or chronic disorder or residuals thereof. The Veteran has also submitted private medical records from 2011 to 2012, which document his back and neck pain. They make no mention of his shoulders, except to note that, with regard to his posture and alignment, he had a low shoulder, varying from the left to right side. See Private Treatment Records (VBMS Medical Treatment Records 1/13/2016). In order for a claimant to be granted service connection for a claimed disability, there must be evidence of a current disability. Degmetich v. Brown, 104 F. 3d 1328, 1332 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). The requirements of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). The preponderance of the evidence shows that the Veteran does not exhibit a current diagnosis of any right shoulder disability. While his service treatment records document shoulder pain, none of these records show a diagnosis or any objective evidence of any right shoulder condition. At his VA examinations in September 2007 and June 2009, his right shoulder was found to be normal. Furthermore, the additional private treatment records the Veteran has submitted do not show objective evidence or a diagnosis of any right shoulder disability. Therefore, due to the absence of a current right shoulder disability, service connection is not warranted. III. Withdrawal of Appeal of Service Connection for Bilateral Plantar Fasciitis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5) (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Such withdrawal may be made by the appellant or by his or her authorized representative. Id. Here, the Veteran stated at the October 2015 Board hearing that he wished to withdraw his pending appeal with regard to his claim of service connection for bilateral plantar fasciitis. See Hearing Transcript at 2. Accordingly, the Veteran's appeal as to this claim is dismissed. ORDER The Veteran's claim of service connection for a right shoulder disability is denied. The Veteran's claim of service connection for bilateral plantar fasciitis is dismissed. REMAND While the Veteran's prior VA examinations found no left shoulder disability, the Veteran has submitted private treatment records showing a diagnosis of multi-directional laxity, AC joint arthrosis, and tendonitis. At the time of his June 2009 VA examination, the Veteran had a diagnosis from his private doctor of left shoulder pain with multi-directional shoulder laxity. See May 2009 Private Treatment Record (VBMS Medical Treatment Records 5/14/2009, pg. 4). These records were reviewed and considered by the June 2009 VA examiner when he concluded the Veteran did not have a current left shoulder disability. In March 2010, the Veteran's private doctor, Dr. G, advised the Veteran that his multi-directional instability of the left shoulder is a congenital problem and is generally treated with aggressive rehabilitation. However, because of the Veteran's persistent pain, Dr. G ordered an MRI to ensure there was no additional pathology. See VBMS Medical Treatment Records 7/20/2010, pg. 5. A March 2010 MRI of the left shoulder showed "AC joint osteoarthritis with edema in the acromion process and in the distal clavicle." See VBMS Private Medical Records 6/1/2010, pg. 2. The Veteran's private doctor, Dr. G, reviewed the MRI and noted "some evidence of AC joint arthrosis with a little bit increased signal uptake in the acromion and distal clavicle adjacent to the joint with some irregularity at the joint." Dr. G's assessment was "Multi-directional laxity of the left shoulder with some evidence of AC joint arthrosis as well. However, his rotator cuff is intact." See VBMS Private Medical Records 7/20/2010, pg. 2. The Veteran also submitted records from a November 2015 visit with his private primary care provider, Dr. S. See VBMS Medical Treatment Records 12/3/2015, pgs. 1, 4. The Veteran reported that he began to develop shoulder problems in approximately 1999, with the left shoulder worse than the right. Dr. S diagnosed the Veteran with tendonitis of the left shoulder and impingement syndrome. He wrote that strength was normal, and range of motion was decreased approximately 10 percent above the shoulder compared to his right side. Dr. S wrote that given the Veteran's 14 years of service as an aircraft mechanic, lifting and working above the shoulder, he believed the Veteran likely developed chronic tendonitis/impingement at that time, which continues to bother him. The record noted that Dr. S had not reviewed the Veteran's x-rays or MRI studies. For this reason, the Board finds that an immediate grant based on Dr. S's opinion is not called for here. However, in light of the additional evidence showing AC joint arthrosis, tendonitis, and impingment syndrome, another VA examination is warranted to determine whether the Veteran has a current left shoulder disability incurred in or aggravated by his active service. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding, pertinent medical records (VA or private) relevant to the Veteran's claim. Any additional treatment records identified by the Veteran must be obtained and associated with the claims file. (Consent to obtain records should be obtained where necessary.) 2. Thereafter, schedule a VA examination to determine the nature and etiology of any left shoulder condition. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner in conjuction with the examination. The examiner is requested to answer the following questions: a. Is it at least as likely as not that the Veteran has a current left shoulder disability that had its onset in or was otherwise related to his service? b. Is it at least as likely as not that the Veteran developed a left shoulder disability within one year immediately following his period of service, and if so, what was the degree of such manifestation? The examiner is asked to address the Veteran's private treatment records, including the March 2010 MRI showing multi-directional laxity of the left shoulder and AC joint arthrosis, as well as the November 2015 opinion of tendonitis and impingement syndrome due to service. All appropriate testing, including range of motion testing, should be conducted. The examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination, or endurance. The examiner should also estimate any additional loss of function during periods of flare-up, expressed in degrees of lost motion. Such estimate can be based on the Veteran's description of his limitations during such periods, so that an estimate should be provided, if at all possible, even in the absence of direct observation by the examiner. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a left shoulder disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a complete rationale for each opinion given. 3. After completing the above and any other development deemed necessary, re-adjudicate the issue remaining on the appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before returning the case to the Board. 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 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. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs