Citation Nr: 1753484 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 09-47 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2002 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Jurisdiction has since been transferred to the VA RO in Denver, Colorado. In the December 2009 Form VA 9, the Veteran requested a Travel Board hearing. The Board notes that the Veteran was scheduled for a Travel Board hearing in November 2015. In October 2015, the Veteran requested that the hearing be rescheduled. The Veteran was then scheduled for a Board videoconference hearing in February 2016. In February 2016, the Veteran waived his right to a Board hearing and requested that his appeal be forwarded to the Board for a decision. Therefore, the Board finds that his request for a Board hearing has been withdrawn. See 38 C.F.R. § 20.704(e) (2017). This issue was remanded to the Agency of Original Jurisdiction (AOJ) in May 2012, April 2016, and March 2017. There has been substantial compliance with the remand instructions and this matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). These appeals were processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. FINDINGS OF FACT 1. A right shoulder disability was not incurred during active service or manifested within one year of separation. 2. A right shoulder disability is not caused or aggravated by a service-connected disease or injury. CONCLUSION OF LAW A right shoulder disability was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not proximately due to or a result of a service-connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Stegall As noted in the Introduction, the Board previously remanded this matter in March 2017. With respect to the issue decided, the Board instructed the RO to obtain any outstanding VA treatment records, contact the Veteran and attempt to obtain a complete copy of private treatment records, and readjudicate the claim. The claim file contains the requested outstanding VA evidence, and though he did not respond, the Veteran was contacted with a subsequent development letter in an attempt to obtain the requested private treatment records. The RO readjudicated the claim most recently in an August 2017 Supplemental Statement of the Case (SSOC). As a result of these steps taken, the Board finds that there has been substantial compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board notes that the Veteran contested the validity of his September 2009 VA examination. In advancing this argument, it is not clear whether the Veteran raised a general challenge to the professional competence of the VA examiner who provided this examination. Both the U.S. Court of Appeals for Veterans Claims (Court) and the Federal Circuit have held, however, that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)). The Court held in Cox that "the Board is entitled to assume the competence of a VA examiner." Id. at 569 (citations omitted). Absent evidence or argument which called in to question a VA examiner's professional competence, the Court concluded in Cox that it is not error for the Board to presume that a VA examiner is competent. Id. See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). The Federal Circuit in Rizzo expressly adopted the Cox standard regarding the presumption of competence of VA examiners absent specific argument or evidence concerning professional competence advanced by an appellant. See Rizzo, 580 F.3d at 1290-91. In adopting the presumption of competence of VA examiners announced by the Court in Cox, the Federal Circuit specifically held in Rizzo that: Absent some challenge to the expertise of a VA expert, this court perceives no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case a precondition for the Board's reliance upon that physician's opinion. Indeed, whereas here the Veteran does not challenge a VA medical expert's competence or qualifications before the Board, this court holds that VA need not affirmatively establish that expert's competency. Id. Neither the Veteran nor his service representative has raised a specific challenge to the professional medical competence or qualifications of the VA examiner who provided the September 2009 VA examination. The Board finds that the examiner is competent and will assign appropriate probative weight to the opinion. Furthermore, the Veteran was afforded an additional VA examination in May 2016, and he has not raised any concerns regarding the validity of that examination or opinion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining an adequate VA examination has been met. 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his representative has raised any additional issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. III. Service Connection 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. §§ 1110; 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). The continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a), and are therefore inapplicable in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). 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). 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) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). 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) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). 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)). The Veteran asserts entitlement to service connection for a right shoulder disability, to include as secondary to his service-connected cervical spine disability. The Veteran's service treatment records (STR) document several complaints of left shoulder pain, however right shoulder pain is not mentioned. Left shoulder pain is first referenced in the Veteran's STR's in January 2002. May 2007 STR's reported that the Veteran experienced upper back pain that radiated to his left shoulder. June 2007 STR's recorded a rotator cuff injury to the Veteran's left shoulder. The Veteran's July 2007 STR's document that the Veteran denied having ever experienced shoulder pain, and upon examination, his upper extremities were determined to be in normal condition. Following his separation from service, the Veteran received chiropractic treatment for his left shoulder. See March 2008 private treatment records. In May 2008, the Veteran filed a claim for compensation, in part, for shoulder pain. He did not specify his right or left shoulder, but reported that his shoulder disability began in January 2002. The Veteran was afforded a VA examination in June 2008. He told the examiner that he had neck pain that radiated down to his left shoulder. He said that his left shoulder pain was not related to cold or rainy weather and did not face any restrictions on his routine daily activities. He denied experiencing any specific left shoulder injury or joint problems. The examiner determined that the Veteran's left shoulder was essentially normal. The Veteran did not mention any pain or concerns regarding his right shoulder. VA received two buddy statements in August 2008, which reported witnessing the Veteran experience shoulder, neck and back pain. Neither buddy statement specified which shoulder caused the Veteran pain. The Veteran submitted what appeared to be incomplete private treatment records documenting medical care for his right shoulder in December 2008. The private treatment records reported that the Veteran injured his right shoulder in June 2008. Diagnostic testing showed a tear of the posterior-superior labrum, with tiny paralabral cysts. He was diagnosed with a labrum tear/slap lesion of the right shoulder in September 2008. In a December 2008 statement, the Veteran reported that he incurred a rotator cuff injury in June 2007. He said that this rotator cuff injury related to his September 2008 labrum tear/slap lesion diagnosis. See December 2008 Notice of Disagreement. The Veteran was afforded a VA examination in September 2009. The Veteran reported pain with his right shoulder and intermittent pain with his left shoulder. He reported that bilateral shoulder pain began in 2006 during a physical fitness test. The Veteran told the examiner that during this time, he experienced sharp pain and a popping sensation over his shoulders. He then experienced limited motion and sought medical attention where he received physical therapy treatment. X-rays of both shoulders performed at examination were unremarkable. The examiner determined that the Veteran's shoulders were normal with subjective complaint of pain. The examiner concluded that the Veteran's subjective complaints of pain in his shoulders were not likely caused by, aggravated or related to his service-connected cervical spine disability. The examiner explained that the Veteran was negative for any significant pathology regarding his shoulders during the examination. The Veteran submitted a December 2009 statement, contesting the validity of the September 2009 VA examination due to the length of time of the examination, an incomplete review of the record, and incorrectly reported facts. He stated that he had painful shoulder motion and again referred to an in-service shoulder injury. The Veteran was afforded an additional VA examination in May 2016. The Veteran reported sudden right shoulder pain in June 2007 while performing physical training. He told the examiner that his STR's incorrectly documented a shoulder injury which impacted his left shoulder, when in fact it was his right shoulder that was injured. The Veteran told the examiner that while the December 2008 private treatment records recorded an injury occurring to his right shoulder in June 2008, that was not the date of injury, but instead the date it was reported. The examiner reviewed the Veteran's medical history and lay statements and noted that the December 2008 private treatment records appeared incomplete. The examiner also noted that the Veteran's STR's documented left shoulder injuries or complaints but that there was no complaints regarding the right shoulder. Upon examination, the Veteran was diagnosed with a tear of the posterior glenoid extending to the posterior-superior aspect and also involving the inferior labrum (180 degree labral tear). The examiner determined that there was no evidence of a rotator cuff tear. The examiner highlighted post service treatment records documenting that the Veteran sought treatment for a left shoulder injury. He determined that although the Veteran believed he injured his right shoulder in June 2007, two separate medical reports documented injury to the left shoulder, without mention of right shoulder pain during that timeframe. The examiner determined that the private treatment records appeared incomplete, and therefore he was unable to review the detailed history that would have been taken at the initial encounter. The Board notes that the March 2017 remand instructed the RO to contact the Veteran and attempt to obtain the complete private treatment records. To date, the Veteran has yet to reply to the request to obtain those records. The examiner concluded that there was no documentation to support the Veteran's claim of an injury to his right shoulder while in service, and it was less likely than not that more than one medical provider would incorrectly document the wrong shoulder when providing medical care. The examiner also determined that the Veteran's right shoulder disability was less likely than not proximately due to or the result of the Veteran's service-connected conditions. He explained that the pathology of the Veteran's right shoulder pain is a labral tear and the mechanisms of injury are trauma to the shoulder and repetitive overhead use of the limb. The examiner stated that degenerative disease of the cervical spine does not cause labral tears. He also stated that cervical radiculopathy could hypothetically aggravate shoulder pain by causing weakness of the shoulder muscles, however in this case the nerve root involved was the left C7 nerve root which does not innervate the shoulder muscles and is also on the wrong side. In light of the above evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran's right shoulder disability is related to his active service, or caused or aggravated by his service-connected cervical spine disability. The Board finds the VA examiner's May 2016 opinion to be the most probative evidence of record as to the etiology of the Veteran's right shoulder disability. The examiner took a history from the Veteran, reviewed the treatment records, examined him, and provided detailed findings and a detailed rationale for his conclusions. The Board notes there is no medical opinion that contradicts the opinions of the VA examiner in May 2016. The Board acknowledges that the Veteran asserts that he injured his right shoulder in service. The Board also acknowledges that the Veteran suggests, in the alternative, that his shoulder disorder was caused by his service-connected cervical spine disorder. While the Board acknowledges his assertions, the Board ultimately finds the medical opinion of the May 2016 VA examiner to be more persuasive based on the more detailed findings and rationale provided in his report. In addition, as noted above, the Veteran specifically denied shoulder pain around the time of separation, and only sought treatment for left shoulder pain shortly after separation. The Veteran has also stated several times that his right shoulder injury began in June 2007, which is documented as a left shoulder rotator cuff injury in STR's. This assertion is outweighed by the May 2016 VA examiners determination that there was no evidence of a right shoulder rotator cuff tear. The Board finds that this weighs heavily against the persuasive value of the Veteran's assertion that his right shoulder problems began in service. In summary, the Board concludes that the Veteran's right shoulder disability is not shown to be related to his active service, or caused or aggravated by service-connected disease or injury, and that service connection is therefore not warranted; the preponderance of the evidence is against the claims, and the benefit of the doubt rule is therefore not for application. ORDER Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs