Citation Nr: 1623326 Decision Date: 06/10/16 Archive Date: 06/21/16 DOCKET NO. 12-22 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral shoulder disability. 2. Entitlement to service connection for cervical spine disability. 3. Entitlement to service connection for pulmonary disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1974 to February 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. When this case was before the Board in January 2015, it was remanded for additional development. The case is now again before the Board for further appellate action. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. The issue of entitlement to service connection for a pulmonary disability is addressed in the REMAND that follows the ORDER below. FINDINGS OF FACT 1. No disability of either shoulder was present until more than one year after the Veteran's discharge from service, and no current disability of either shoulder is etiologically related to the Veteran's active service. 2. No cervical spine disability was present until more than one year after the Veteran's discharge from service, and no current cervical spine disability is etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran initially claimed entitlement to service connection for bilateral shoulder and cervical spine disabilities in October 2010. In its January 2015 remand, the Board found that the Veteran had not been provided adequate notice as to the requirements for substantiating his claims. Pursuant to the Board's remand, the Veteran was provided all required notice in an April 2015 letter. Although the Veteran was not provided complete notice until after the initial adjudication of his claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the Veteran's claims in a May 2015 supplemental statement of the case. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of either claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also notes that all of the Veteran's pertinent service treatment records (STRs) and post-service VA and private treatment records have been obtained, to the extent they have been identified by the Veteran. In addition, the Veteran was afforded the opportunity to attend a hearing before the Board, but declined. The Board acknowledges that no VA examinations were provided and no VA medical opinions have been obtained in response to the Veteran's claims for service connection for bilateral shoulder and cervical spine disabilities. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) 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, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2015). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. In this case, the Veteran's post-service treatment records show that he underwent rotator cuff surgeries on his left and right shoulders in November 2005 and December 2005, respectively, and that he has continued to report bilateral shoulder pain. They also show the Veteran was diagnosed with degenerative disc disease of the cervical spine in March 2013. The Veteran's STRs, however, do not show any complaints, diagnoses, or treatment related to his shoulders or cervical spine during service. The Veteran has not otherwise alleged any such treatment, or that his bilateral shoulder or cervical spine disabilities are related to any particular injury, disease, event, or activity during service. Upon a review of the entire record, there is no competent evidence suggesting any relation between the Veteran's claimed disabilities and his active service. Therefore, VA is not required to provide medical examinations or to obtain medical opinions in response to the Veteran's claims. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate his claims. The Board is also unaware of any such evidence. As such, the Board finds that VA has fulfilled its duty to assist the Veteran in the development of his claims, and the Board will proceed to address the merits of the claims. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. The Veteran is apparently claiming that he is entitled to service connection for bilateral shoulder disability and a cervical spine disability because they are related to the work he performed in service. The Board first notes that the Veteran's STRs are devoid of any evidence of any disorder of either shoulder or the cervical spine. In addition, although the Veteran previously attributed his service-connected right knee disability to an in-service fall, he has not attributed his shoulder disabilities or cervical spine disability to the same event, or otherwise to any in-service injury, disease, or event. Upon a review of the entire record, there is no competent evidence suggesting the claimed disabilities are etiologically related to his active service. In addition, private treatment notes show that in September 2005, the Veteran complained of pain in both shoulders and reported he had been doing heavy lifting as a baggage claim specialist with Delta for many years, and that both shoulders hurt after lifting baggage all day. In sum, the Veteran has not contended and the medical evidence does not suggest that he had any of the claimed disabilities within one year of his discharge from service. While the Veteran contends that the claimed disabilities are etiologically related to the work he performed in service, as a lay person he does not possess the medical expertise to provide a competent opinion concerning the etiology of the claimed disabilities. As discussed above, there is no competent evidence linking the claimed disabilities to service. Accordingly, the claims must be denied. In reaching this decision, the Board has duly considered the benefit-of-the-doubt doctrine but has determined that the doctrine is inapplicable because the preponderance of the evidence is against the Veteran's claims. ORDER Entitlement to service connection for bilateral shoulder disability is denied. Entitlement to service connection for cervical spine disability is denied. REMAND Although further delay is regrettable, the Board finds that additional development is required before the Veteran's claim of entitlement to service connection for a pulmonary disability is decided. The Veteran was afforded a VA examination in July 2011. The examiner noted the Veteran's history of childhood asthma, and in-service treatment for upper respiratory infections, asthma, and chronic bronchitis, as well as his reports of continuing issues with intermittent bronchitis occurring once or twice a year and lasting a few days to a week and a half on each occasion. The examiner noted the Veteran had been treated at the Columbia VA Medical Center (VAMC) for bronchitis, but stated that at the time of the examination, there was no objective evidence of any respiratory condition. The Veteran was afforded an additional VA examination in June 2012, and an additional VA opinion was obtained in July 2012. The June 2012 examiner noted the Veteran's report that while stationed in Thailand during service, they "used to burn a lot of shit out there." The Veteran reported he always felt like something was itching in the back of his throat, that he was recently treated for bronchitis, and that he had been treated for his illness approximately once per month. The examiner stated that the Veteran's physical examination, chest X-ray, and pulmonary function tests (PFTs) were not consistent with chronic bronchitis, an obstructive lung disease, and that his condition was less likely than not incurred in or caused by his active service. In a July 2012 VA opinion, however, a VA physician gave a diagnosis of restrictive ventilatory defect, "per the [Veteran's] PFTs with obesity likely contributing." The physician did not opine as to whether the diagnosed restrictive ventilatory defect was incurred in or was otherwise etiologically related to the Veteran's active service. Thus, the record is not clear as to whether the Veteran currently has a pulmonary disability due to a disease or injury, and if so whether it is related to his active service. While the July 2011 examiner found no disability present, the July 2012 examiner diagnosed the Veteran with restrictive ventilatory defect but provided no opinion as to the etiology of the abnormality. The Board also notes that 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). In addition, a medical examiner is not free to simply ignore a Veteran's lay statements recounting symptoms or events. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board notes that the Veteran's STRs show a diagnosis of bronchitis in May 1974, a diagnosis of asthmatic bronchitis in April 1976, a diagnosis of viral bronchitis in February 1977, as well as performance of a bronchoscopy and a diagnosis of chronic bronchitis in March 1977. In addition, the Veteran's post-service medical records show an August 2010 diagnosis of purulent bronchitis, a May 2012 diagnosis of acute bronchitis, and a December 2012 diagnosis of bronchitis. Although the July 2011 VA examination report includes a cursory acknowledgement of the Veteran's past treatment for bronchitis, the examiner did not undertake a thorough review or discussion of the Veteran's STRs or post-service treatment records. The June 2012 examination report and July 2012 opinion, likewise, include little to no discussion of the Veteran's medical history. In addition, the Board notes that the examination reports of record do not directly address the Veteran's lay statements reporting a history of repeated, intermittent treatment for bronchitis, for which he usually took over-the-counter medication. The examination reports do not address the possibility that the Veteran has a chronic pulmonary disorder, even though he did not present with any symptoms at the time of his examinations. For the foregoing reasons, the Board finds that the VA examination reports currently of record are inadequate for adjudication purposes. As such, a remand is warranted in order to afford the Veteran an additional VA examination. On remand, relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to specifically include any available VA treatment records since March 2015. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of each pulmonary disorder present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify each pulmonary disorder that has been present during the period of the claim, to include any underlying pulmonary disorder responsible for the restrictive ventilatory defect found in July 2012. If the examiner determines that bronchitis has not been present during the period of the claim, the examiner should explain why the diagnosis is not warranted. With respect to each pulmonary disorder present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder originated during service, was caused by service, or is otherwise etiologically related to the Veteran's active service. In providing his or her opinions, the examiner must consider and discuss the following evidence: * the Veteran's in-service treatment records showing a diagnosis of bronchitis in May 1974, a diagnosis of asthmatic bronchitis in April 1976, a diagnosis of viral bronchitis in February 1977, as well as performance of a bronchoscopy and a diagnosis of chronic bronchitis in March 1977; * the Veteran's post-service medical records showing an August 2010 diagnosis of purulent bronchitis, a May 2012 diagnosis of acute bronchitis, and a December 2012 diagnosis of bronchitis; * the July 2012 VA examiner's diagnosis of the Veteran with restrictive ventilatory defect; * the Veteran's competent lay statements to the effect that he continues to have intermittent symptoms he believes are due to bronchitis occurring between once per month and once or twice a year, lasting a few days to a week and a half on each occasion, and for which he usually takes over-the-counter medication; and * the Veteran's competent lay statements to the effect that while stationed in Thailand during service, he and others "burned a lot of shit out there." The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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 (West 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs