Citation Nr: 1805978 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-24 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1953 to February 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the Veteran's record. In March and November 2016, the case was remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT 1. A chronic right shoulder disability was not manifested in service; arthritis of the right shoulder was not manifested in the first postservice year; and any current right shoulder disability is not shown to be etiologically related to the Veteran's service. CONCLUSION OF LAW 1. Service connection for a right shoulder disability is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in December 2012. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran (via his representative) contends that the February 2017 VA (fee basis) shoulder examination report is inadequate for rating purposes because rationale for the opinion provided does not contain "documentation of the ongoing complaints reported by the veteran." See January 2018 statement. A review of the examination report found that the examiner interviewed and examined the Veteran, recorded the reported history of right shoulder pain onset when he was thrown from a jeep in service, and reviewed the claims file and summarized the Veteran's postservice medical and employment histories. The Board finds that the examination report is adequate for rating purposes as the examiner considered the Veteran's report and provided an opinion assuming that event in service occurred as described by the Veteran (as instructed by the Board's March 2016 remand). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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). Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 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 an 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 service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 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 layperson. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring 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). Factual Background The Board notes that it has reviewed all of the evidence in the 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 claim. The Veteran contends that he sustained a right shoulder injury in service when he was thrown from a vehicle which struck a bomb crater. He reported that he was treated at a medical facility in Victoria, Texas. See March 2013 Notice of Disagreement and August 2013 VA Form 9. He has also reported that in 1956 he injured his right shoulder when he was thrown from the back of a truck while chasing rabbits. See January 24, 2011 private clinical record. The Veteran's STRs are silent for complaints, treatment, or diagnoses pertaining to a right shoulder disability. [STRs do show July 1954 treatment for a left shoulder muscle strain.] On January 1957 service separation examination, the Veteran's upper extremities were normal; he denied arthritis/rheumatism, painful or "trick" shoulder, and bone, joint, or other deformity. In 1983, the Veteran filed a claim seeking service connection for a kidney disability and a right finger scar. At that time, he did not seek service connection for a right shoulder disability. Private medical records (dated in 1963 to 1970) received in connection with the prior claim are silent for right shoulder complaints but do note complaints of kidney problems, abdominal pain, back pain, drowsiness, rectal pain, left leg soreness, fever/chills/sore throat, and cough. The earliest postservice clinical evidence pertaining to the Veteran's right shoulder is a January 4, 2011 private clinical record which notes complaints of right shoulder pain. The Veteran reported that in 1956 he was in an accident where he was "chasing rabbits from back of truck and he was thrown from the truck and landed on his right shoulder." He related on and off pain ever since, with severe pain in the last eight to ten years. Following examination and x-rays, the diagnosis was right shoulder end stage osteoarthritis, subacromial impingement, and acromioclavicular joint arthropathy. On January 31, 2011, the Veteran underwent a right total shoulder arthroplasty. The postoperative diagnosis was end-stage osteoarthritis of the right shoulder glenohumeral joint. Clinical records since note continuing complaints of right shoulder pain, but do not contain an opinion regarding the etiology of the right shoulder disability. At the March 2016 Board hearing, the Veteran testified that he was thrown from a jeep on Matagorda Island and sent to Victoria, Texas for an x-ray. He testified that he "got the X-ray and it was busted up and they wrapped it and sent me back to [Matagorda] Island and from there I went back to work you know. And but it, it got better and then after I got out of service." He reported that it began to hurt again "sometime in the sixties," but he did not retain a copy of those medical records. The Veteran denied having any records of medical treatment for his right shoulder prior to January 2011; he testified that he used aspirin, but not pain pills. He denied any postservice accidents or shoulder injuries. In March 2016, the Board remanded this appeal for further development, including for an examination to obtain a nexus opinion which takes into consideration the Veteran's report of a right shoulder injury in service from falling out of a jeep. The Board noted that this report was consistent with his MOS of vehicle driver. On April 2016 VA (fee basis) shoulder examination, the Veteran reported right shoulder pain and stiffness that began in 1954 when he was thrown from the back of a truck on the bombing range at Matagorda Island, Texas. On examination, x-rays showed degenerative changes in the right acromioclavicular joint and total shoulder replacement with no hardware complications. The diagnosis was right acromioclavicular joint osteoarthritis. Following interview of the Veteran, examination of his shoulder, and review of the claims file, the examiner opined it less likely than not that the Veteran's right shoulder disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner, an occupational medicine physician, explained that the Veteran's STRs do not show a right injury, his service separation examination was negative regarding a shoulder condition, and there are no medical records supporting right shoulder symptoms prior to January 2011. She opined that age and prior occupation are the more likely etiologies, noting that the Veteran was 82 years old and had worked in maintenance most of his life. In an August 2016 statement, the Veteran reported that he received treatment for his right shoulder in service at a medical facility in Victoria, Texas. The Board noted that Foster Air Force Base (located just outside of Victoria) was operational during his period of service. Accordingly, in November 2016, the Board remanded this appeal for further development, namely to attempt to obtain any outstanding STRs. On remand, the AOJ contacted the National Archives and Records Administration (NARA) as well as the National Personnel Records Center (NPRC). A complete copy of the Veteran's service personnel records was associated to the file. However, a February 2017 negative reply from NPRC indicated that most Air Force clinical records prior to 1960 were generally filed with a veteran's STRs in the Office of Military Personnel Files (OMPF), which appear to have been lost in a 1973 fire. On February 2017 VA (fee basis) examination (by the April 2016 examiner), status post total right shoulder arthroplasty was diagnosed. The Veteran again reported right shoulder pain since he was thrown from a jeep on Matagorda Island. He reported that after service, he worked as a shipping clerk in steel manufacturing for 27 years, at a grocery warehouse for two years, and as an electric intake clerk for five years. Review of the record found normal service entrance and separation examination reports, a July 1954 strain of the left shoulder, and January 2011 right total shoulder arthroscopy. The examiner again opined that the Veteran's right shoulder disability was less likely than not incurred in or caused by the claimed injury, event, or illness in service. The examiner noted that the first postservice record of a right shoulder condition (both the diagnosis of end-stage osteoarthritis and the right shoulder surgery) is in January 2011. Continuity of symptomatology was not shown between 1957 and 2011. She opined that his age (77 years in 2011) and his occupational history of 30+ years of labor as a shipping clerk in steel manufacturing and warehouse clerk are the etiology of his right shoulder condition. Analysis It is not in dispute that the Veteran has a right shoulder disability. Conceding (strictly for the purposes of this decision) that he fell from a jeep and sustained a right shoulder injury in service, as alleged, what remains to be established is whether his right shoulder disability is related to such injury. On January 1957 service separation examination, the Veteran's upper extremities were normal; he denied arthritis/rheumatism, painful or "trick" shoulder, and bone, joint, or other deformity. At the March 2016 Board hearing, he testified that his shoulder "got better and then after I got out of service." He further testified that his shoulder became symptomatic again sometime in the 1960s. As a chronic right shoulder disability (including arthritis) was not shown to have been manifested to a compensable degree within a year following the Veteran's separation from service, and postservice continuity is not shown, service connection for a right shoulder disability on the basis that it became manifest in service and persisted thereafter, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a)) is not warranted. The Board turns to the question of whether service connection may be granted based on an affirmative showing of a nexus to service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d) (direct service connection). The Board acknowledges that lay evidence of symptoms during and after service may be competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Veteran's accounts of continuous symptoms since service are inconsistent with contemporaneous clinical findings. For example, private clinical records from 1963 to 1970 are silent for right shoulder complaints. Notably, the records show complaints pertaining to kidney problems, abdominal pain, back pain, drowsiness, rectal pain, left leg soreness, fever/chills/sore throat, and cough. The Board also notes that the Veteran filed a claim seeking service connection for a kidney and finger disability in 1983 (and not for a right shoulder disability). While not dispositive evidence in the matter, such evidence weighs against the claim of service connection as it tends to contradict the allegation of postservice continuity of related symptoms. Furthermore, the first postservice clinical evidence of right shoulder complaints is from January 2011, more than five decades after separation from service, another factor weighing against his current claim. There is no competent (medical opinion) evidence of record that otherwise relates the Veteran's right shoulder disability to his service. To the extent that he asserts his right shoulder disability is directly related to service, the Board notes that in the absence of evidence of onset in service and continuity thereafter, the etiology of a shoulder disability first noted approximately 54 years postservice is a medical question. Because he is a layperson, the Veteran lacks the expertise to offer a probative opinion in this matter. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He has not submitted any medical opinion or medical literature in support of his claim. The only competent (medical) evidence in the record regarding the etiology of the Veteran's right shoulder disability, the April 2016 and February 2017 VA (fee basis) examinations, is against the Veteran's claim. The same occupational medicine physician conducted both examinations. Following review of the claims file and interview and examination of the Veteran, she opined that the Veteran's right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury. She noted that upon service separation his right upper extremity was clinically normal. She outlined the relevant medical history (noting the gap in time from 1957 service separation until 2011) as well as the Veteran's occupations (which suggest use of upper extremities). She also noted the Board's March 2016 remand which advised that the Veteran's account is consistent with his MOS of vehicle driver. Ultimately, she opined that the etiology of the right shoulder disability was a combination of his age (77 years in 2011) and the Veteran's occupations, including more than 30 years of labor as a steel manufacturing shipping clerk and a warehouse clerk. The opinion is probative evidence in the matter; in the absence of competent evidence to the contrary, it is persuasive. In summary, a chronic right shoulder disability is not shown to have been manifested in service; arthritis of the right shoulder was not manifested in the first postservice year; and the Veteran's reports of continuity of symptomatology since service are inconsistent with contemporaneously recorded data, and are not credible. The only competent evidence in the record regarding the etiology of the right shoulder disability is against this claim, and the preponderance of the overall evidence is against the claim. Accordingly, the benefit of the doubt rule does not apply; the appeal in the matter must be denied. ORDER Service connection for a right shoulder disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs