Citation Nr: 1751907 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-22 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Service connection for a left shoulder disability. 2. Service connection for a right shoulder disability. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), schizophrenia, and antisocial personality disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1989 to May 1993 and had additional service from June 1993 to October 1997 that was dishonorable (and non-qualifying for VA compensation benefits). These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In his August 2013 VA Form 9, the Veteran requested a videoconference hearing before the Board. In a February 2016 statement he withdrew the hearing request. [The Board notes that despite the Veteran's withdrawal of the hearing request, a hearing was scheduled for May 2017. The Veteran, who is currently incarcerated, did not appear, and he did not request another hearing within the applicable timeframe]. [The matter of service connection for left tibial fracture was also on appeal before the Board. A January 2017 rating decision granted service connection for left tibial fracture, resolving that issue.] The issue of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), schizophrenia, and antisocial personality disorder is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. The competent medical evidence, and competent and credible lay evidence, does not demonstrate that the Veteran's left shoulder disability was manifested during a period of honorable service or for many years thereafter. 2. The competent medical evidence, and competent and credible lay evidence, does not demonstrate that the Veteran's right shoulder disability was manifested during a period of honorable service or for many years thereafter; does not show that arthritis manifested to a compensable level within a year of his service discharge or is otherwise related to active duty. CONCLUSIONS OF LAW 1. Service connection for a left shoulder disability is not warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. Service connection for a right shoulder disability is not warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Adequate notice was provided in February 2011, and the claims were later adjudicated or readjudicated. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records (STRs), assisted the Veteran in obtaining evidence, and obtained a VA medical opinion and examination in 2012. The examination is adequate as it provides all information necessary to render the requested medical opinions in light of the evidence for the service connection claims being decided. All known and available records relevant to the issues being decided on appeal have been obtained and associated with the Veteran's claims record. VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claims at this time. Legal Criteria, Factual Background, and Analysis The Board has reviewed the Veteran's entire record with an emphasis on the evidence relevant to this appeal. 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). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: a current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases, to include arthritis, may be presumed to be service connected if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis). 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. Laypersons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Left shoulder disability A May 1991 STR notes a diagnosis of left shoulder tendonitis. The symptoms resolved and no shoulder condition was reported on his October 1992 re-enlistment report of medical history. An April 1994 STR record notes treatment for left shoulder tendonitis, however, this occurred during service which was deemed dishonorable, and therefore is non-qualifying for VA benefits. A May 1997 Department of Corrections (DOC) treatment record notes that the Veteran hurt his left shoulder. On examination, there was full range of motion in the left shoulder, neurological signs were intact, and the diagnosis was left shoulder strain. On February 1999, May 2001, and December 2004 DOC physical examinations, the Veteran's extremities were normal. On January 2012 VA left shoulder examination, the examiner noted a diagnosis of left shoulder tendonitis based on a May 1991 STR. The Veteran reported that he had alternating pain in his left and right shoulders after an October 1990 left lower leg injury. He reported that the alternating shoulder pain persisted for a few months and resolved. The diagnosis was tendonitis. The examiner opined that it was less likely than not that the Veteran's left shoulder disability was caused by an in-service event or injury. The examiner explained that the Veteran had a diagnosis of left shoulder tendonitis in service, but the symptoms resolved. The examiner noted that the Veteran was incarcerated during the pendency of the appeal (and is still incarcerated) and regularly lifted weights. Additionally, the examiner noted that there were no records of ongoing left shoulder treatment and a gap of a few years between any in-service injury and any postservice treatment. Further, the examiner opined that it was as least as likely as not that the current shoulder complaints are due to lifting weights while in prison and not due to the left shoulder tendonitis diagnosed in service. As explained above, the record reflects the Veteran has a diagnosis of left shoulder tendonitis. What remains to be established is that there is an etiological relationship between the Veteran's service and his current shoulder disability. The disability was not shown on October 1992 or October 1995 service examination reports, and the Veteran denied having or having had pertinent symptomatology at the time of his October 1992 service examination. The first postservice medical treatment for a left shoulder injury was in May 1997, when the Veteran presented with left shoulder complaints that did not date back to service. As arthritis is not shown to have been manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 do not apply. The Veteran has asserted that his left shoulder disability manifested in service and has continued through his time in prison. He also alleged that he was told by a VA representative at a 1992 service outprocessing seminar that he would be eligible for 30 percent disability for his leg and shoulders. No additional proof of this conversation has been provided. Further, the May 1997 DOC treatment record is the only medical treatment record documenting left shoulder treatment since service. A lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service). Therefore, the Board places no weight of probative value on the Veteran's statements indicating a continuity of symptomatology since service. The Board places the greatest weight of probative value on the January 2012 VA opinion. The examiner concluded that the Veteran's left shoulder injury was less likely than not due to an in-service event or injury. The examiner explained that the tendonitis symptoms resolved, and there was a lack of continuity of treatment for a left shoulder injury post service. Additionally, the examiner opined that any current left shoulder injury was more likely than not due to the Veteran regularly lifting weights during his incarceration. The opinion reflects a full review of the evidence of record, including history provided by the Veteran. The opinion is supported by detailed findings and rationale. There is no other opinion that contradicts the January 2012 opinion. Regarding the Veteran's own opinion that he has a left shoulder disability that is due to his service, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the probable etiology of a disorder such as tendonitis falls outside the realm of common knowledge of a lay person. The Veteran has not demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting competent medical opinion or medical treatise evidence. Therefore, his opinion in this matter has no probative value. In summary, the claim of service connection for a left shoulder disability is denied based on a direct service connection theory of entitlement. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Right shoulder disability The Veteran's STRs are silent for any complaint, diagnosis, or treatment for a right shoulder disability in service. A November 1999 DOC treatment record notes that the Veteran injured his right shoulder lifting weights. A December 1999 DOC treatment record notes that the Veteran reported pain and "popping" in his right shoulder. On examination, range of motion was within normal limits. The biceps tendon was tender, and there were mild biceps tendonitis and mild impingement signs. On May 2001 and December 2004 DOC physical examinations, the Veteran's extremities were normal. An April 2008 DOC treatment record notes that the Veteran reported that he has had right shoulder pain since an injury sustained lifting weights in 1999. He reported pain that radiated from his neck through his shoulder to his fingers. The pain seemed to increase after activity. The provider noted that previous shoulder X-rays were negative for any bony abnormalities. May 2008 X-rays showed mild degenerative changes in the right shoulder. The Veteran reported pain in the subacromial area of the right shoulder. The diagnosis was calcifying tendinitis and subacromial tendinitis of the right shoulder. A July 2010 DOC treatment record notes that the Veteran reported a stiff neck that he attributed to his right shoulder disability. There was no recent injury, but the Veteran reported numbness in his right shoulder that went down his right arm to his hand. X-rays showed mild hypertrophic changes at the AC articulation that included inferiorly directed osteophyte formation. The diagnosis was rotator cuff syndrome with hypertrophic changes at the AC joint. On January 2012 VA right shoulder examination, the Veteran reported that in October 1990, during service, he had a blunt trauma to his left lower leg with a resultant left tibia fracture and was treated with a long leg cast. Two months after the injury he began to have pain in his right shoulder without any new injury. He reported that the pain moved to the left shoulder then back to the right and continued to alternate from side to side. He reported that he never had pain in both shoulders at the same time, and the alternating right and left shoulder pain persisted for a number of months and resolved. He reported intermittent pain in the right shoulder that had been present for two years prior to examination. He reported pain that started at the base of the right side of his neck and radiated laterally toward the deltoid region, but did not extend past the deltoid. He also reported numbness in his right arm that extended down to his right hand and involved the entire right upper extremity. He denied any new injuries including injuries to his neck. The diagnoses were osteoarthritis and tendonitis. The examiner opined that it was less likely than not that the Veteran's right shoulder disability was caused by an in-service event or injury. The examiner explained that the symptoms of any in-service right shoulder pain resolved. The examiner noted a diagnosis of right shoulder degenerative joint disease in April 2008 and that the Veteran reported right shoulder pain approximately two years prior to the examination, which was a gap of almost twenty years after discharge from service. The examiner noted that the Veteran was incarcerated during the pendency of the appeal (and is still incarcerated) and regularly lifted weights. Further, the examiner opined that it was as least as likely as not that any current right shoulder complaints are due to lifting weights while in prison and not due to the any right shoulder complaints in service. As explained above, the record reflects the Veteran has diagnoses of right shoulder tendonitis and osteoarthritis. What remains to be established is that there is an etiological relationship between the Veteran's service and his current shoulder disability. The disability was not shown on October 1992 or October 1995 service examination reports, and the Veteran denied having or having had pertinent symptomatology at the time of his October 1992 service examination. The first postservice medical treatment for a right shoulder injury was in November 1999, when the Veteran presented with right shoulder complaints that did not date back to service. As arthritis is not shown to have been manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 do not apply. The Veteran has asserted that his right shoulder disability manifested in service and has continued through his time in prison. He also alleged that he was told by a VA representative at a 1992 outprocessing seminar that he would be eligible for 30 percent disability for his leg and shoulders. No additional proof of this conversation has been provided. Further, the first postservice right shoulder treatment record is a November 1999 DOC treatment record that notes an injury sustained from lifting weights. Therefore, the Board places no weight of probative value on the Veteran's statements indicating a continuity of symptomatology since service. The Board places the greatest weight of probative value on the January 2012 VA opinion. The examiner concluded that the Veteran's right shoulder injury was less likely than not due to an in-service event or injury. The examiner explained that any in-service right shoulder pain (which was not reported in the STRs) resolved, and there was a lack of continuity of treatment for a right shoulder injury post service. Additionally, the examiner opined that any current right shoulder injury was more likely than not due to the Veteran regularly lifting weights during his incarceration. The opinion reflects a full review of the evidence of record, including history provided by the Veteran. The opinion is supported by detailed findings and rationale. There is no other opinion that contradicts the January 2012 opinion. Regarding the Veteran's own opinion that he has a right shoulder disability that is due to his service, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the probable etiology of disorders such as tendonitis and osteoarthritis fall outside the realm of common knowledge of a lay person. The Veteran has not demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting medical opinion or medical treatise evidence. Therefore, his opinion in this matter has no probative value. In summary, the claim of service connection for a right shoulder disability is denied based on a presumptive and direct service connection theory of entitlement. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left shoulder disability is denied. Service connection for a right shoulder disability is denied. REMAND On January 2012 VA PTSD examination, the examiner determined that the Veteran did not have PTSD under DSM-IV criteria. For cases certified to the Board on or after August 4, 2014, a diagnosis of PTSD must be in accordance with the criteria as outlined in the DSM-5. See 38 C.F.R. § 4.125(a) (2017). As the Veteran's claim was certified to the Board in January 2017, a diagnosis of PTSD must conform to DSM-5. Therefore, a new examination is necessary to consider whether the Veteran has PTSD or another psychiatric disorder under DSM-5 criteria that is related to his honorable period of service. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The record reflects the Veteran may currently be incarcerated, although there is an indication he was up for parole in September 2017. The duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement; as such, individuals are entitled to the same care and consideration given to their fellow non-incarcerated veterans. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA does not have the authority to require a correctional institution to release a veteran so that VA can provide him or the necessary examination at the closest VA medical facility. 38 U.S.C. § 5711. Nevertheless, VA's duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination worksheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The VA Adjudication Procedure Manual contains a provision for scheduling examinations of incarcerated veterans. The manual calls for the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether a veteran should be escorted to a VA medical facility for examination by VHA personnel. If that is not possible, the veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. VHA compensation clinics must document that they have made multiple attempts and exhausted all possible avenues for obtaining access to the incarcerated veteran for the examination. See M21-1, Part III.iv.3.F.2.d. Such procedures must be followed on remand. Accordingly, the case is REMANDED for the following: 1. Determine whether the Veteran remains incarcerated. If he is still incarcerated, take all reasonable measures to schedule the Veteran for a psychiatric examination pursuant to the guidance in M21-1, Part III.iv.3.F.2.d. If the AOJ is unable to afford the Veteran an examination due to his incarceration, document in detail all of the steps taken in attempting to do so. If the Veteran remains incarcerated and the AOJ is able to afford the Veteran an examination or if he is no longer incarcerated, then arrange for him to be examined by a psychiatrist or psychologist to determine the nature and likely etiology of his psychiatric disability. The claims file must be made available to the examiner in conjunction with this request. Based upon a review of the relevant evidence of record and history provided by the Veteran, the VA examiner should identify all acquired psychiatric disorders by diagnosis using the DSM-5 diagnostic criteria. The examiner is asked to respond to the following: A) If the Veteran is diagnosed with PTSD, opine as to whether it is at least as likely as not (50% or greater probability) related to his service. B) As to any acquired psychiatric disorder diagnosed other than PTSD, to include schizophrenia and antisocial personality disorder, opine as to whether it is at least as likely as not (50 percent or greater probability) related to his service. In making these determinations the examiner should consider the Veteran's PTSD stressor statements from his period of honorable service (February 1989 to May 1993). The examiner is advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. A complete rationale for any opinion rendered should be provided. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. Merely saying he or she cannot respond will not suffice. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B. ______________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs