Citation Nr: 1646941	
Decision Date: 12/15/16    Archive Date: 12/30/16

DOCKET NO.  15-07 035	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected residuals of gunshot wound to the neck.

2.  Entitlement to an initial rating in excess of 30 percent for service-connected anxiety disorder, not otherwise specified (NOS), with some features of posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Jan Dils, Attorney-at-law


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel


INTRODUCTION

The Veteran served on active duty from August 1951 to August 1953.  Service in the Republic of Korea is indicated by the record.  The Veteran is the recipient of the Combat Infantry Badge and the Purple Heart Medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Veteran was scheduled to appear at the Winston-Salem RO for a videoconference hearing before a Veterans Law Judge in September 2016; however, he withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e).

In an August 2010 rating decision, the RO denied the Veteran's claim of entitlement to an increased rating for service-connected shell fragment wound of the neck.  The Veteran disagreed with the denial and a statement of the case (SOC) was issued in March 2013.  The Veteran did not file a substantive appeal; as such, an appeal of the increased rating claim has not been perfected.  See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.202 (2015).  Accordingly, said issue is not in appellate status; as such, the issue will be address no further herein.  See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (the request for appellate review is completed by the claimant's filing of a substantive appeal after a SOC is issued by VA).

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).

The issue of entitlement to an initial rating in excess of 30 percent for anxiety disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  The Veteran will be notified if further action on his part is required.



FINDINGS OF FACT

1.  A right shoulder disability, to include degenerative joint disease (DJD), did not have its onset in service or within one year of the Veteran's military discharge, and is not otherwise related to his active military service.

2.  A right shoulder disability, to include DJD, is not caused or aggravated by the Veteran's service-connected residuals of gunshot wound to the neck.


CONCLUSIONS OF LAW

1.  A right shoulder disability, to include DJD, was not incurred in or aggravated by the Veteran's military service.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2015).

2.  A right shoulder disability, to include DJD, is not proximately due to, or aggravated by, the Veteran's service-connected disabilities.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5017 (West 2014); 38 C.F.R. §§ 3.303, 3.310(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015), requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b)(1).

Here, a letter dated November 2011 complied with VA's duty to notify the Veteran as to the pending claim.  In particular, the letter apprised the Veteran of what the evidence must show to establish entitlement to service connection, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The Veteran was also notified of the criteria for assigning a disability rating and an effective date in the November 2011 letter.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Regarding VA's duty to assist as to the claim on appeal, the RO obtained the Veteran's service treatment and service personnel records, as well as VA and private treatment records in furtherance of his claim.  As such, the Board finds that VA has properly assisted the Veteran in obtaining any relevant evidence.

Moreover, the Veteran was afforded a VA examination with medical opinion in November 2011 with respect to the pending right shoulder claim.  As indicated in the discussion below, the examination findings and medical opinion expressed indicate that the VA examiner thoroughly reviewed the Veteran's past medical history, documented his complaints, and rendered findings consistent with the remainder of the evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).  The Board therefore concludes that the November 2011 VA examination report and medical opinion are sufficient for evaluation purposes.  See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  Thus, given the standard of the regulation, the Board finds that VA does not have a duty to assist that was unmet.

II. Analysis

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability.  See 38 C.F.R. § 3.310(a) (2015); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged.

The Veteran contends that he is diagnosed with DJD of the right shoulder, which is due to his active military service.  He alternatively contends that his right shoulder disability is caused or aggravated by his service-connected residuals of a gunshot wound of the neck.  For the reasons set forth below, the Board concludes that service connection is not warranted.
As indicated above, the Veteran served on active duty from August 1951 to August 1953.  His STRs document a gunshot wound to the neck in July 1952.  There was no documentation of any injury to the right shoulder at that time.  The Veteran's March 1953 service separation examination did not document any complaint of or treatment for symptoms of a right shoulder disability.

Notably, the Veteran was service-connected for residuals of a gunshot wound of the right neck in a December 1953 rating decision.

Private treatment records dated in December 1982 documented excision of a local tumor growth of the right axilla.  It was noted that the Veteran had a previous excision of a mass from the axilla in 1978.  He was diagnosed with right axillar hydrianitis.  A November 1988 x-ray documented a "large bullet fragment in the right supraclavicular area and smaller fragments in both the right and left sides of the neck."  The treatment provider noted that "[t]here has been no significant change in the appearance of the chest or location of the bullet fragments since an old examination done in July of 1987."

VA treatment records dated in March 2009 noted that "[x]-rays show mild DJD and bullet fragment right upper chest and lower cervical spine."  A June 2009 VA treatment record noted "[r]ight supraclavicular fossa with foreign body palpable under the skin."  It was assessed as "[b]ullet fragment in right shoulder."  VA treatment records dated in April 2010 documented the Veteran's report of right shoulder pain.

The Veteran was afforded a VA examination in November 2011 at which time the examiner confirmed a diagnosis of DJD of the right shoulder.  The examiner noted, "[t]he Veteran has history of shrapnel fragment wound to the right anterior neck paratracheal without nerve or artery damage, in 1952 while deployed to Korea."  The examiner continued, "[t]he wound was paratracheal and shrapnel [was] removed from the right neck in 1952.  Shrapnel remains in situ at the area of initial injury."  With respect to the question of direct service connection, the examiner determined that the claimed right shoulder disability "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness."  The examiner explained, "[t]he mild right shoulder DJD is due to age.  There is no pathology on examination to support that the gunshot wound to the right neck (paratracheal) would cause DJD in the right shoulder.  There is no evidence of shoulder injury due to right neck gunshot wound."  The November 2011 VA examiner also determined that the Veteran's right shoulder condition is "not at least as likely as not aggravated beyond its natural progression by service-connected gunshot wound of neck."  The examiner provided the following rationale:  "[t]he mild right shoulder DJD is due to age and there is no evidence of any injury to the right shoulder or other pathology due to gunshot wound right neck which would cause aggravation beyond the natural progression of age related changes, right shoulder."

With respect to the current claim, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed disability and the Veteran's active duty service and his service-connected gunshot wound residuals of the neck outweighs any medical evidence suggestive of a nexus.  In particular, the November 2011 VA medical opinion complied was based on a review of the record, including the lay statements and evidence submitted by the Veteran, and analysis of the Veteran's medical history.  The Board therefore places significant weight on the findings of the November 2011 VA examiner.  See Nieves-Rodriguez, 22 Vet. App. at 295 (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").

The Veteran has not produced a medical opinion to contradict the conclusions set forth in the November 2011 VA medical opinion.  As was explained in the VCAA section above, the Veteran has been afforded ample opportunity to present competent medical evidence in support of his claim.  He has not done so.  See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits).  Thus, the November 2011 VA medical opinion stands unchallenged as competent medical evidence on these crucial questions of medical nexus and aggravation.
Lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The Veteran's testimony that his right shoulder disability is related to his military service and/or the service-connected gunshot wound has some tendency to make a nexus more likely than it would be without such an assertion.  However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention.  Not all competent evidence is of equal value.  The Veteran's contentions in support of service connection including as to dependent and/or aggravated symptomatology are contradicted by the findings of the November 2011 VA examiner who specifically considered the Veteran's lay assertions and any such inferences contained in the record in rendering the negative nexus opinion.

Moreover, there is no indication in the medical evidence of record that the Veteran was diagnosed with DJD of the right shoulder during his military service or for years thereafter.  The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan, supra.  Crucially, the evidence does not document a diagnosis of DJD until 2009.  C.f., Walker, 708 F.3d at 1331.  The claim of continuity of symptoms is not consistent with the first post-service treatment records reflecting a more recent onset of right shoulder complaints.  The Veteran's contentions regarding chronic right shoulder symptoms dating from service and being related to service or service-connected disability are less probative than the findings of the November 2011 VA examiner, as detailed above.

Consequently, and based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for DJD of the right shoulder on both direct and secondary bases.  Accordingly, the benefit of the doubt doctrine is not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.



ORDER

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


REMAND

The Board's review of the claims file reveals that additional AOJ action on the remaining claim on appeal - entitlement to an initial rating in excess of 30 percent for service-connected anxiety disorder with features of PTSD - is warranted.

The Veteran was last afforded a VA examination for evaluation of his service-connected anxiety disorder in November 2011.  He has recently submitted an October 2014 private psychological evaluation in which the psychologist stated that the Veteran's anxiety disorder is worse than was contemplated by the November 2011 VA examiner.  The Veteran also submitted a November 2014 disability benefits questionnaire, which indicated that his psychological symptoms resulted in "[t]otal occupational and social impairment."  This evidence is at least suggestive of a worsening of the Veteran's psychiatric disability.  Thus, the Board finds that the Veteran should be afforded a new VA examination to obtain contemporaneous, pertinent information to assess the current nature and severity of his anxiety disorder with some features of PTSD.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)
1.  After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has received, to include any records of VA treatment dating from November 2011.  All such available documents must be associated with the claims file.

2.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate mental health professional, for evaluation of his service-connected anxiety disorder with some features of PTSD.

The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report must reflect full consideration of the Veteran's documented medical history and assertions.  All indicated tests and studies (to include psychological testing, if deemed warranted) should be accomplished (with all results made available to the clinician prior to the completion of his or her report) and all clinical findings should be set forth, in detail.

The examiner should identify, and comment on the nature, frequency and/or severity (as appropriate), of all psychiatric symptoms found to be present, to include the impact of such on the Veteran's occupational and social functioning.  He or she should discuss those findings in relation to the pertinent evidence of record, particularly the Veteran's previous VA examination conducted in November 2011, and any lay and clinical evidence suggesting that his overall mental health symptoms have subsequently worsened, resulting in more severe occupational and social impairment.  

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.

3.  Thereafter, adjudicate the claim on appeal.  If any benefit sought remains denied, the Veteran and his attorney should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board.

No action is required of the Veteran until notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in denial of the claim.  38 C.F.R. § 3.655 (2015).  The Veteran 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 of Veterans' Appeals 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 (West 2014).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs