Citation Nr: 1616248 Decision Date: 04/25/16 Archive Date: 05/04/16 DOCKET NO. 10-36 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right shoulder condition. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from October 1942 to January 1946 and from March 1951 to February 1969. This matter comes before the Board of Veterans' appeals (Board) on appeal from a rating decision dated July 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2015, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of any newly submitted evidence. It is noted that in the statement from the Veteran's representative in December 2015, the representative listed six issues as being on appeal; the three above captioned service connection claims, as well as a claim for service connection for a right elbow, and increased rating claims for arthritis of multiple joints and for a left knee disability. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The evidence of record does not show that the Veteran's diagnosed right shoulder disability was incurred in service or is etiologically related to service. 2. The evidence of record does not show that the Veteran has a current disability of PTSD. 3. The Veteran's tinnitus is related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for an acquired psychiatric disability, to include PTSD, are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.306 (2015). 3. Criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided by a letter. Additionally, neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was afforded VA examinations in May 2010 to address his right shoulder disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations for the Veteran's knee, considered along with the medical evidence of record, are adequate because they were performed by medical professionals, and were based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran. As such, the medical evidence of record contains sufficient information to fairly rate the Veteran's service connected disability on appeal. The Board finds that the rating examination for the Veteran's shoulder disability was adequate as well, as the examiner provided a complete rationale for his opinion, that was derived from the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Moreover, neither the Veteran nor his representative has objected to the adequacy of any examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). With regard to the Veteran's claim for an acquired psychiatric disability, to include PTSD, while a VA medical opinion was not provided, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). The record in this case is negative for any indication, other than the Veteran's own assertion, that he has a diagnosis of PTSD or of an acquired psychiatric disability. As such, this conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes VA and private treatment records, as well as service treatment records, and the Veteran has not identified any potentially relevant records that have not been obtained. In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claims, and to respond to VA notices. The Veteran and his representative have not identified any outstanding evidence that needs to be obtained. As described, the Board finds that VA has fulfilled the duties to notify and assist the Veteran, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Entitlement to Service Connection for a Right Shoulder Disability In a January 2007 claim, the Veteran alleged that he had a right shoulder disability as a result of his service. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002)); see also Caluza v. Brown, 7 Vet. App. 498 (1995); 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. The Board notes that arthritis will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran has been diagnosed with arthritis of the right shoulder; however, as such was not diagnosed within a year of his discharge, the presumption described above is not for application here. Additionally, service connection may be established for a chronic disability such as arthritis if it can be established by showing continuity of symptomatology from service. Here, however, x-rays in September 1969 did not show arthritis in the Veteran's right shoulder. As such, continuity of symptomatology is not established. Here, the evidence shows a current diagnosis of degenerative arthritis in the Veteran's right shoulder. With regard to an in-service injury, the Veteran endured a shoulder injury in 1945 as reported at his May 2010 VA examination and he sought treatment for aching shoulders during service in 1968, as recorded in his service treatment records. The Board finds that as the shoulder pain is recorded in the Veteran's service records, it is sufficient to meet element two of Shedden. Finally, the Board finds that it is the third element of Shedden upon which the Veteran's claim for a right shoulder disability claim fails. The Veteran was afforded a VA examination in May 2010, at which point the examiner reviewed the Veteran's claims file and his medical history and opined that his right shoulder disability was less likely than not related to his in-service shoulder injury in 1945. Specifically, the examiner found that as the Veteran's right shoulder injury in the 1940s was mild in nature and occurred long before his diagnosis of right shoulder arthritis, it was less likely than not that the Veteran's current diagnosis is related to his service. The Board finds that the examination report and opinion are highly probative, and the most probative evidence of record with regard to the Veteran's right shoulder disability claim for service connection. The May 2010 examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Furthermore, the examiner provided a full rationale for his opinion, and specifically addressed all of the episodes of the Veteran's claimed shoulder pain between service and his claim when he found that his current disability is not related to his service. Of note, the examiner's conclusion has not been undermined or challenged by any other medical opinion or evidence of record. The Board has also considered the Veteran's statements asserting a nexus between his currently diagnosed right shoulder disability and his service. The Veteran indicated that his current shoulder pain, related to his current arthritis, is related to the shoulder pain and injury he suffered in-service. While the Board acknowledges that the Veteran is competent to report symptoms as they come to him through his senses, to include pain, arthritis is not the type of disorder that a lay person can provide competent evidence on questions of etiology. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). This disease involves medically complex disease processes and can result from multiple etiologies, and it therefore requires specialized testing to diagnose. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Further, the etiology of the Veteran's current right shoulder disability is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran. Based on the evidence of record, the Board finds that the weight of the competent evidence is against a finding of relationship between the Veteran's current right shoulder disability and his military service. The Veteran's claim of entitlement to service connection for his right shoulder disability is therefore denied. Entitlement to Service Connection for an acquired psychiatric disability, to include PTSD In his January 2007 claim, the Veteran submitted a claim for service connection for PTSD. He alleged that he had PTSD as a result of exposure to several in-service stressors. The Board notes that the requirements for service connection under Shedden are listed above. Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) and the Diagnostic and Statistical Manual of Mental Disorders, (DSM); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). At the outset, with regard to the first element necessary for a grant of service connection for PTSD, the Board notes that the weight of the evidence is against a finding that the Veteran has met the criteria for an Axis I diagnosis of PTSD at any time during the course of his appeal. The Veteran asserts that his current psychiatric disability is related to his claimed airplane crash in-service and witnessing a friend getting his arm shot off in 1943 in Germany. The evidentiary record contains all available and obtainable VA treatment records, which document medical treatment the Veteran has received since service. The VA treatment records do not contain a diagnosis of PTSD rendered pursuant to the DSM, based on military, or even non-military, stressors. For example, a PTSD screens in February 2006 and August 2006 was negative, and there is no showing of treatment for PTSD, or any other acquired psychiatric disability. This is probative evidence against the Veteran's claim. There is no other competent lay or medical evidence containing a diagnosis of PTSD included in the record. Furthermore, although the Veteran believes that he has PTSD that is related to his military service, PTSD or any other psychiatric disability is not the type of condition which may generally be diagnosed by a lay person, as the diagnosis must be consistent with the criteria listed in the DSM. There is no indication that the Veteran has reported a contemporaneous medical diagnosis; nor is there any indication that the Veteran has described symptoms which were later supported by a competent, credible, and probative diagnosis of PTSD by a medical professional. See Jandreau, supra. Instead, the Board finds the preponderance of the evidence of record reflects that the Veteran does not have a current diagnosis of PTSD. Without a diagnosis of PTSD, VA need not determine whether the Veteran's reported stressors can be verified, since the Veteran's PTSD claim may only be granted if he has a current diagnosis. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for PTSD. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has recharacterized the issue of entitlement to service connection for depression as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, as with PTSD, the evidence of record simply does not show that the Veteran has been diagnosed with an acquired psychiatric disability, other than PTSD. As such, service connection is not warranted on that basis. Entitlement to Service Connection for Tinnitus The Veteran filed a claim for service connection for tinnitus in January 2007. He asserted that noise exposure in-service caused his current tinnitus, which results in ringing in his ears. The Board notes that at VA examinations the Veteran reported intermittent tinnitus in both ears. With respect to the Veteran's tinnitus, consideration has been given to the Veteran's assertion that his disability had its onset in service or is etiologically related thereto. He is deemed competent to identify the symptoms of tinnitus, i.e., ringing in the ears. Of note, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has presented competent lay evidence of in-service noise exposure and he has essentially reported that his tinnitus has existed since his noise exposure in service. VA regulations provide that a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Board will resolve all doubt in the Veteran's favor, and in so doing service connection for tinnitus is granted. ORDER Service connection for a right shoulder condition is denied. Service connection for an acquired psychiatric disability, other than PTSD, is denied. Service connection for tinnitus is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs