Citation Nr: 1751183 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-33 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran & his wife ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from March 1979 to March 1982, and later in the Army National Guard. This matter comes before the Board Veterans' Appeals (Board) on appeal from a rating decision the VA Regional Office (RO) at Waco, Texas issued in October 2011. In July 2016, the Board remanded the claimed left shoulder disability and low back disability to develop them further. In May 2017, a VA examiner offered an addendum opinion to fulfill the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2015 the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript is of record. Since the Board's July 2015 remand, the RO has granted service connection for degenerative disc disease of the lumbar spine low back strain and radiculopathy of the right and left lower extremities. In July 2017, the Veteran submitted a notice of disagreement (NOD) as to evaluations assigned. The RO has acknowledged receipt of the NOD. As the RO has acknowledged receipt of the NOD and additional action is pending at the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As the RO is properly addressing the NOD, no action is warranted by the Board. FINDING OF FACT A left shoulder disability has not been shown to be causally related to active duty, or to have manifested in service or within the first post-service year. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations obligate VA to provide claimants notice and assistance in substantiating their claims. 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) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below focuses specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to establish service connection a Veteran must show: (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. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA may also grant service connection for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the Veteran incurred the disease or injury in service. 38 C.F.R. §3.303(d). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "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. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1112 , 1113, 1137; 38 C.F.R. §§3.303, 3.304, 3.307, 3.309(a). VA must consider all pertinent medical and lay evidence to evaluate a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to diagnose a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later medical professional's diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA may not find lay evidence incredible merely because contemporaneous medical evidence does not accompany it. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the Board may consider and weigh lack of contemporaneous medical evidence against a Veteran's lay statements. Id. Further, the Board may draw a negative inference from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). First, to analyze the Veteran's claim under the direct service connection theory, the Board notes he suffers a left shoulder disability presently. An October 2011 examination conducted by a doctor at Diagnostic Health, Waco, TX, diagnosed the Veteran's left shoulder as follows: "1. Partial tear at the myotendinous junction of the supraspinatus tendon. 2. Glenohumeral joint osteoarthritis. 3. Acromioclavicular degenerative joint disease with sprain of the coracoclavicular ligament. 4. Question mild strain of the teres minor insertion." Moreover, the Board noted a March 2011 shoulder magnetic resonance image (MRI) previously in its July 2016 remand order to reopen the left shoulder claim the RO previously denied to finality in March 1997. Second, the Veteran has shown he suffered an in-service event, incident or injury. He suffered injuries from a military vehicle accident in June 1996, including to his left rhomboid muscle, for which service connection has been granted. Third, however, the Veteran has not shown a nexus to connect his current left shoulder disability to his in-service military vehicle incident that resulted in injuries. The May 2017 VA examiner opined on reviewing the contemporaneously kept medical records of the June 1996 incident that "(r)eview of treatment records from Texas National Guard (Army) dated 6/14/96 & 6/15/96 only mentions about back injury. THERE IS NO MENTION OF SHOULDER INJURY OR TREATMENT RENDERED FOR SHOULDER INJURY." Moreover, a June 2011 VA examiner noted an impression of "Normal left shoulder...Left shoulder shows no bone or joint or soft tissue abnormality" when reviewing July 2005 images of the Veteran's left shoulder that predate a truck accident while working the Veteran suffered in February 2010, which he described to his examiner as the time he stopped working. Relatedly, the Social Security Administration (SSA) records show that the Veteran suffered a truck driving injury on a bridge in February 2010 for which he sought treatment and he "(n)eck and shoulder pain" in September 2011. Likewise, a February 2016 private examination in Dallas, Texas, notes "Left shoulder x-ray shows loss of joint space with impingement of head of humerus..." Nevertheless, in spite of the aforementioned negative left shoulder images and intercurrent February 2010 driving accident, the Veteran stated to the May 2017 VA examiner that "...his left shoulder got hurt along with low back during military vehicle accident." The Veteran also testified to the VLJ that the vehicle dropped down and the Veteran and two others were thrown up in the air and came down in the vehicle. The Veteran indicated that they lands on their backs and sides and that is how the injury occurred. He indicated that he hurt his left shoulder and lower back. He stated that the injuries were written up in a statement of the day. Yet, the contemporaneous STRs the National Guard recorded of the 1996 incident do not speak of a shoulder injury, as the May 2017 VA examiner noted. For example, the contemporaneous Statement of Medial Examination and Duty Status (STR) dated June 14, 1996, recites "Thoracic + Lumbar contusion-later symptoms of...process ligament strain." And while testifying, the Veteran answered the VLJ's question in the affirmative as to whether he has "been having the problems with it ever since injury" with respect to both "your low back and your shoulder," but did not distinguish between the two to describe symptoms. Notably, a February 2005 VA examiner note only mentions the back, indicating that the Veteran come with a complaint of pain in his back. The examiner indicated that the Veteran reported that he hurt his back when he fell on a cargo hatch in one of the tanks while in the service. But none of STRs relate to the shoulder. However, a March 2005 VA note of patient history expresses "BACK AND LEFT SHOULDER PAIN SINCE 1992...MOST RECENT XRAY TAKEN 2003 NEGATIVE" which suggests problems predating the 1996 incident and no image evidence of permanent injury approximately eight years after the 1996 incident. Pain alone is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999), vacated in part, dismissed in part by Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Lastly, the Board notes the contemporaneous STR of the June 1996 incident otherwise corroborates the fall as the Veteran testified, except mention of injuring the shoulder. While the Veteran is competent to testify to lay facts he has observed during or after service, he is not competent to opine a causal relationship between his alleged in-service injuries and current left shoulder disability; because determining that requires medical expertise. Jandreau, 492 F.3d at 1377. As a matter of fact-finding, the Board finds the May 2017 VA examiner competent to render an exhaustive medical opinion regarding both causation and aggravation due to his education, experience and credentials; and credible due to his well-reasoned rationales as a medical professional reviewing the Veteran's file and records. The Board lends great weight to his opinion relative to the lay evidence to find the evidence preponderates against finding the Veteran's military vehicle accident in June 1996 caused his current left shoulder disability. The Board finds the evidence of record, particularly the contemporaneous records of the 1996 incident, insufficient to show a nexus between them. 38 C.F.R. §3.303. Lastly, VA regulations recognize the Veteran's left shoulder disability as a chronic disease for VA purposes when diagnosed as arthritis or degenerative joint disease (DJD), as in October 2011 after Diagnostic Health in Waco, Texas reviewed a magnetic resonance image (MRI) of the Veteran's left shoulder. However, service connection on a presumptive basis is not warranted because there is no evidence of record showing that arthritis manifested to a compensable degree within one year after discharge. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). Nor may service connection based on continuity of symptomatology since service be granted because the first diagnosis the Board notes is October 2011, and previous VA notes mention the Veteran presenting for back and shoulder pain, but also note negative imagery to show the ultimate diagnosis in 2011. There is no showing of continuity after discharge. 38 C.F.R. §§ 3.303(b). The weight of the evidence is against a finding that the Veteran's left shoulder was the result of his service, and the Veteran's claim is denied. ORDER Entitlement to service connection for a left shoulder disability is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs