Citation Nr: 1619596	
Decision Date: 05/13/16    Archive Date: 05/19/16

DOCKET NO.  13-05 574	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for a right shoulder disability, to include arthritis.


REPRESENTATION

Veteran represented by:	Jeffery J. Bunten, Esquire


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Orie, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1974 to August 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, in pertinent part, denied service connection for the Veteran's right shoulder disability.  The Veteran disagreed with that decision and perfected this appeal.

In December 2013, the Veteran was afforded a Board hearing via video conference before a Veterans Law Judge; transcript of that hearing is of record.  In February 2016, the Veteran was informed that the VLJ who conducted his hearing was no longer with the Board.  The Veteran was offered an opportunity to testify before another VLJ, which he declined.  38 U.S.C.A. § 7107(c)(West 2014); 38 C.F.R. § 20.707 (2015); see Letters dated February 19, 2016 and March 31, 2016.


FINDINGS OF FACT

1.  A chronic right shoulder disability was not manifest during service and is not attributable to service.

2.  Arthritis of the right shoulder was not manifest in service or within the one-year presumptive period following service.  


CONCLUSION OF LAW

A right shoulder disability was not incurred in or aggravated by service and arthritis of the right shoulder may not be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R § 3.159.

Proper VCAA notice must inform the claimant of any information and 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) (West 2014); 38 C.F.R. § 3.159(b)(1) (2015).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In the present appeal, the Veteran was provided with a VCAA notification letter in July 2010 and his claims were last readjudicated in December 2015.  The Board concludes that the duty to notify has been met.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  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 claim, 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 claim.  38 C.F.R. § 3.159(c)(4).

In this case, VA obtained the Veteran's service treatment records and all of the identified post-service VA and private treatment records.  The Veteran was also afforded a VA examination in September 2010; a subsequent addendum was sought in December 2015.  As discussed in more detail below, the assessment includes a review of the Veteran's pertinent service and post-service history, clinical findings, and diagnoses, and the findings were supported by medical rationale.  As addressed below, the Board also finds that the VA opinion was based upon an accurate factual history as determined by the Board.  As such, the Board finds that the September 2010 VA examination and subsequent addendum are adequate to make a determination on the claim.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

The Board previously remanded the case in February 2015 for further development.  Specifically, the RO was to attempt to obtain the Veteran's relevant medical records from the 1980s to 1992 and his worker's compensation documentation.  Upon remand, the RO sought authorization from the Veteran to obtain such records.  See Letters from the RO dated June 25, 2015 and July 10, 2015.  However, to date, the Veteran has neither submitted the requested records, nor proper authorizations for release of the information.  Without a properly completed authorization, VA cannot obtain the records in question.  The Board observes that the duty to assist in the development and the adjudication of claims is not a one-way street.  If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the evidence.  Wood v. Derwinski, 1 Vet. App. 190 (1991).  As such, the Board finds that the RO substantially complied with the Board's February 2015 remand instructions.  See 38 U.S.C.A. § 5103A(d); Stegall v. West, 11 Vet. App. 268 (1998).  Accordingly, the Board finds that VA has complied with the duty to assist.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim for service connection for a right shoulder disability is ready to be considered on the merits.




Applicable Law and Analysis

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). 

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for 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; 38 C.F.R. §§ 3.307, 3.309.

For the showing of a 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)).

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (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); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

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).

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran claims that his current right shoulder disability stems from his period of active service.  The Veteran maintains that he sustained a right shoulder injury in service, which has been painful since the initial injury.  See Letter from Veteran dated December 20, 2011; Hearing Transcript, p. 9.  

At his hearing, the Veteran testified to originally injuring his right shoulder in 1974 due to running into a wall while playing racquetball.  He remembered that an x-ray was taken and being diagnosed with a shoulder strain.  He recalled another clinic visit due to recurrent pain, and undergoing an x-ray examination wherein he held a weighted bag of sand.  He was returned to duty without a diagnosis.  In the early 1980s, he sought treatment for constant right shoulder pain with difficulty with overhead reaching with a private physician which was diagnosed as a strain.  He continued to have right shoulder problems, and was later diagnosed with arthritis and torn rotator cuff tear.  He recalled aggravating his right shoulder disability during a motor vehicle accident in mid-2000, and referred to receiving workers compensation for his right shoulder.

Service treatment records demonstrate that the Veteran suffered a right shoulder injury while playing racquetball.  At that time, an x-ray of the shoulder was negative and the treating physician noted that there was no evidence of a fracture or dislocation.  See Service Treatment Record dated February 21, 1974.  The Veteran's periodic examinations resulted in no complaints of pain and normal findings, to include his right shoulder joint.  See Examinations and Reports of Medical History dated August 7, 1978, April 4, 1980, and September 21, 1983.  In fact, the Veteran specifically denied ever having, or having currently, a "[p]ainful or 'trick' shoulder" Reports of Medical History in 1978, 1979 and 1983.

The post-service treatment records available document that the earliest complaint of right shoulder pain was in 2005.  At that time, the Veteran reported that he had neck pain that radiated down to the right shoulder; the treating physician noted probable cervical radiculopathy.  See Private Treatment Record from Dr. K.R.B. dated August 2, 2005.  Subsequently, the Veteran received treatment for left shoulder pain, particularly after a motor vehicle accident.  See Private Treatment Notes dated July 3, 2007 and October 17, 2007.  The next indication of right shoulder pain was in 2008, which the Veteran attributed to the motor vehicle accident in October 2007.  See Private Treatment Record dated June 2, 2008.  

Most recently, the Veteran was diagnosed with a torn rotator cuff, which Dr. J.E.T. opined was chronic and "certainly consistent with this old injury which he has described playing racquetball 30 years ago."  See Private Treatment Notes dated January 21, 2014.  This opinion was based, in part, on the results of a computed tomography (CT) arthrogram demonstrating a chronic full-thickness rotator cuff tear involving the suprasinatous, infraspinatus and subscapularis.

The Veteran was afforded a VA examination in September 2010 in relation to his claim.  At that time, the Veteran reported that since the 1980s, he has been unable to use his right arm to throw a ball and that lifting heavy objects overhead caused right shoulder pain.  He also reported that long periods of writing or typing caused right shoulder pain, but the pain did not interfere with his sleep or other daily activities.

After an x-ray, the examiner diagnosed the Veteran with acromiclavicular osteoarthritis in both shoulders with mild inferior glenoid spur in the right shoulder.  The examiner opined that the Veteran's arthritis was more likely than not the result of aging and chronic wear and tear rather than the in-service racquetball injury.  In so finding, the examiner noted that he could not draw a nexus between the in-service injury and the current acromioclavicular joint arthritis in the right shoulder since the same amount of arthritis is seen in the left shoulder joint.  See VA Examination dated September 14, 2010.

Upon remand, an addendum was sought.  In response, the examiner offered the following opinion and rationale:

Opinion: The veteran right shoulder condition is less likely as not due to his military service.  Rational: the veteran injured his right shoulder on 2/21/74.  There was not fracture or dislocation.  Soft tissue injuries absent a fracture, dislocation or severe ligament disruption heal without residuals.  There is no evidence to support a serious shoulder injury.  He was seen one time for his shoulder.  Reports of medical exam dated 8/8/78, 8/7/79, 4/4/80 and 9/21/83, the question painful trick shoulder or elbow is checked "no" on both documents.  Per review of str's the veteran was seen on numerous occasions for other medical conditions but not his right shoulder.  These records appear fairly complete.  Following his military service there is also no indication of a chronic right shoulder problem.  He was seen for various other medical complaints but not his right shoulder.  His only mention of a shoulder condition is 3/22/10, left shoulder discomfort following working with weights and the right shoulder in 2008 following a mva.  With regards to his statements of shoulder pain affecting the right shoulder there is no nexus between those statements and almost 40 years of medical evidence.  There is a note dated 8/2/2005 which documents discomfort in the right side of the neck radiating to the right shoulder.  Referred pain from the cervical spine may be the source of his symptoms described in his statements. 

The Board finds that the evidence of record is against the claim for service connection.  The STRs reflects treatment for a right shoulder injury 1974, and the Veteran reports an additional episode of treatment which is not documented.  The Veteran has not provided the specific date for this second episode of treatment, and the STRs overall appear to be complete.  The formal military examinations in 1978, 1979, 1980 and 1983 contain no lay or medical evidence of right shoulder disability.  Thus, the STRs themselves fail to document the onset of a chronic right shoulder disability in service.

The Veteran currently alleges the onset of chronic right shoulder pain during service, and having received treatment for right shoulder pain contemporaneous in time to service discharge.  However, the Veteran's current recollections of persistent/recurrent right shoulder pain since service is not consistent with his prior statements made in 1978, 1979 and 1983 wherein he specifically denied ever having, or having currently, a "[p]ainful or 'trick' shoulder."  Additionally, the Veteran recalls being incapable of throwing a ball or lifting weights overhead contemporaneous in time to his service discharge, but the formal examinations in 1978, 1980, and 1983 indicated normal clinical evaluations of the right upper extremity.

At the very least, the Veteran's history of inconsistent statements on the same subject matter reduces the overall reliability of his assertions.  See State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975) (observing that, when evaluating inconsistent or contradictory testimony, "[t]he fact that [a witness] has stated the matters differently on a previous occasion tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his testimony.") 

With respect to his allegations of chronic right shoulder symptoms since service, the Board places significant probative weight on his specific denials of ever having, or having currently, a "[p]ainful or 'trick' shoulder" in 1978, 1979 and 1983, as these statements were made contemporaneous in time to service discharge and bear the indicia of reliability as they were made in the context of seeking appropriate medical treatment/diagnosis.  See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).

On the other hand, the Veteran's current recollections regarding the onset of chronic right shoulder symptoms since service are not consistent with his prior statements made in service.  Additionally, the Veteran is attempting to recollect events which occurred several decades ago.  As such, the Veteran's current assertions of chronic right shoulder symptoms since service are less credible and persuasive in light of his prior statements in service, and are, in fact, outweighed by this evidence.  Consequently, based on the foregoing evidence, the Board finds that the Veteran's statements regarding the onset and continuity of right shoulder pain since service to be not credible.  Thus, the Board finds that the service connection for right shoulder disability, including arthritis, based upon continuity of symptomatology is not warranted.  See 38 C.F.R. § 3.303(b).

The record also contains medical opinion for and against the claim.  A 2014 treatment note from the Veteran's private doctor, Dr. J.E.T., attributes the Veteran's torn rotator cuff to the Veteran's in-service shoulder injury.  This opinion holds some probative value as this physician attributes the current CT arthrogram findings as demonstrating evidence of an old injury.  However, the probative value of this opinion is significantly reduced as it not clear the scope of evidence considered by this examiner in rendering this opinion.  In this respect, as held above, the Board finds that the Veteran's report of chronic right shoulder symptoms since service is not credible and the opinion does not reflect the extent, if any, the physician relied on these assertions.  Additionally, while the Veteran did have an injury in 1974, the Veteran has also reported being placed on workers compensation due to a right shoulder injury after service and aggravating his right shoulder during a motor vehicle accident in the mid-2000s.  Thus, the record discloses that that the Veteran's in-service injury may not be the only potential source for an old injury.  

On the other hand, the 2010 VA examiner rendered a medical opinion after thoroughly reviewing the claims file and relevant medical records and examining the Veteran.  This physician reviewed the actual STRs to conclude that the Veteran incurred a soft tissue injury and that, based upon the lay and medical evidence contained in the 1978, 1979, 1980 and 1983 examinations, further concluded that the Veteran did not incur a serious injury involving fracture, dislocation or severe ligament disruption heal without residuals.  The examiner also considered the available post-service records, which did not reflect treatment for chronic right shoulder problems until many years after service.  The Board finds that this opinion is based upon an accurate factual predicate as determined by the Board - that the Veteran's current recollections of chronic right shoulder symptoms since service is not credible.

With regard to the post-service onset of a chronic right shoulder disability, the Board acknowledges the Veteran's testimony of receiving treatment for right shoulder disability contemporaneous in time to service discharge.  The Veteran was released from active duty in 1979 and underwent additional formal examinations in 1980 and 1983 wherein he denied right should disability and none was shown on examination.  Notably, he described being diagnosed with a strain.  See Hearing Transcript p. 5.  Thus, the Veteran's current recollections of treatment contemporaneous in time to service discharge are not consistent with the available records contemporaneous in time to service discharge.  To the extent that favorable records exist, the Veteran has not responded to VA's request to submit relevant records, or authorize VA to obtain such records on his behalf.

Also of record are the Veteran's lay statements.  The Veteran reports a second in-service injury, in which he was playing football and injured his shoulder.  He reports that he had an x-ray, which produced negative results; he had no other problems with his right shoulder through the time of discharge.  See VA Examination dated September 14, 2010; Hearing Transcript p.5.  The Veteran also reported that he first sought treatment for his shoulder injury in 1980 while he lived in California; however the doctors saw that nothing was wrong with the shoulder and diagnosed a strain.  See Hearing Transcript p. 5.

As noted above, a lay witness is competent to attest to a medical issue is within the competence of a layperson, a contemporaneous medical diagnosis, symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau, supra.  Here, the Veteran is competent to report receiving treatment for his right shoulder in service and in 1980; he is also competent to report the contemporaneous results of any x-rays performed.  As addressed above, his report of chronic right shoulder symptoms since service is not credible.  To the extent the Veteran attempts to attribute his current disability to his in-service injury, the Board finds he is not competent to do such.  Such an opinion is a medical question that requires specialized knowledge or training, such as medical expertise.  See Layno, supra.  

Based on the forgoing, the Board finds that the weight of the evidence goes against the Veteran's claims of entitlement to service connection for a right shoulder disability, including arthritis.  As the weight of the evidence is against this claim, the benefit-of-the-doubt rule does not apply and this claim must be denied.  38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for a right shoulder disability, to include arthritis is denied



______________________________________________
T.MAINELLI
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs