Citation Nr: 1806476 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-18 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right upper extremity disability. 3. Entitlement to service connection for a cervical disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. Morales, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from September 1982 to September 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 notification letter of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue of a cervical disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The weight of the competent evidence is against finding that the Veteran has a current diagnosis for her right shoulder pain. 2. The competent and probative evidence weighs against finding that Veteran has a current diagnosis for her right upper extremity related pain. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a right upper extremity disability have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran and her representative have not alleged any deficiencies in VA's duties to notify and assist. It will not be discussed further. As such, the Board will proceed with consideration of the Veteran's appeal. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Right Shoulder Disability The Veteran contends that her right shoulder disability is a result from her falling multiple times in service. See 11/04/2011, Correspondence, at p. 1. The Board finds that service connection for the Veteran's right shoulder disability is not warranted, as the probative and competent evidence weighs against a finding of a current diagnosis for her right shoulder pain. Her medical records indicate chronic pain in her right shoulder, but that it is otherwise normal. See 5/6/2015, Medical Treatment Record (MTR) - Government Facility - Record A, at p. 31, 145, 360, 485. However, pain alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The Veteran's records show that while her right shoulder has been chronically painful, the physician determined that it was normal. See 05/11/2015, MTR, at p. 13. ("Impression: 1. Normal right shoulder"). Her medical records are absent for any diagnosis of a right shoulder disability other than chronic pain. Additionally, the Board acknowledges that the Veteran underwent physical therapy for her right shoulder pain, but unfortunately, there has not been an accompanying right shoulder diagnosis. See 11/09/2011, Correspondence. The Board will note that as of April 2015, the Veteran had current diagnoses in her left shoulder - shoulder arthritis and acromioclavicular degenerative joint disease - however, those diagnoses are not present in her right shoulder. 4/9/2016, MTR - Government Facility, at p. 15. While the Veteran believes that her recurrent right shoulder pain is related to service, specifically when she fell during active service, as a layperson, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of her current right shoulder pain are not matters capable of lay observation, and require medical expertise to determine. Accordingly, her opinion as to the etiology of her current right shoulder pain is not competent medical evidence. The Board acknowledges that the Veteran does currently have persistent or recurrent pain in her right shoulder and that she is competent to relate her in-service falls. However, the evidence does not indicate a relationship to service. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A (a)(2). The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Courts have held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Consequently, a VA examination is not warranted for the Veteran's claims for service connection for arthritis of the bilateral ankles, right elbow, bilateral wrists and hips, and vertigo. McLendon v. Nicholson, 20 Vet. Vet. App. 79, 83 (2006). In sum, the competent medical evidence does not show that the Veteran has a current diagnosis related to the claimed pain in her right shoulder; therefore, service connection is not warranted and the claim must be denied. As such, the benefit of the doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107(b). Right Upper Extremity The Board finds that service connection for the Veteran's right upper extremity disability is not warranted, as she does not have a current diagnosis. After a review of the medical evidence, the Veteran's medical records do not show that she has a diagnosis for her right upper extremity. See 5/6/2015, MTR - Government Facility - Record A, at p. 396. Rather, in a June 2013VA examination, the examiner noted that there was no muscle weakness in her right upper extremity. Id. Her medical records are further absent for any diagnosis of a right upper extremity disability. The Board places much weight on the 2013 VA examination as the examiner thoroughly reviewed the Veteran's claim file and conducted an in-person examination, to include looking for an examining the Veteran's upper right extremity. The Board will note that in the June 2013 VA Examination, the Veteran self-reported a history of mild weakness in her left upper extremity and that she developed fatigue in her left shoulder. 5/6/2015, MTR - Government Facility - Record A, at p. 390. However, there is no indication of upper right extremity pain, weakness, or fatigue, or any related diagnosis or disorder. While the Veteran believes that her right upper extremity pain is related to service, specifically when she fell during active service, as a layperson, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of her right upper extremity are not matters capable of lay observation, and require medical expertise to determine. Accordingly, her opinion as to the etiology of her right upper extremity is not competent medical evidence. In sum, the probative and competent evidence does not show that the Veteran has a current diagnosis related to her right upper extremity; therefore, service connection is not warranted and the claim must be denied. As such, the benefit of the doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107(b). ORDER Service connection for a right shoulder disability is denied. Service connection for right upper extremity disability is denied. REMAND The Veteran seeks service connection for her cervical disability. Her medical records indicate that she has current cervical disability diagnoses, to include cervical radiculopathy and stenosis. See 9/12/2016, MTR - Non- Government Facility, at p. 1. The Board finds that a VA examination is warranted as such would be useful for a full and fair adjudication of this issue as the Veteran's has a current diagnosis related to the cervical spine. Indeed, VA has not obtained a medical opinion as to whether the Veteran's cervical disability was incurred in or is otherwise related to service and the Board finds such would be useful to adjudicate this issue. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow her an opportunity to provide the missing records. 2. Ask the Veteran to identify, and authorize the release of, any outstanding private medical records related to her claimed cervical spine disorder. Efforts to obtain those records should be documented and the Veteran should be notified of any failed efforts to obtain them, and allowed the opportunity to provide any missing records. All records must be associated with the claims file. 3. After associating any records with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of her claimed cervical disability. The examiner should review the claims file to become familiar with the pertinent medical history of the Veteran. The examiner should respond to the following: (a) Identify any current cervical disability. Please note that treatment records show current diagnoses of cervical radiculopathy and stenosis. (b) Is any current cervical disability, to include cervical radiculopathy and stenosis, as least as likely as not related to an event, disease, or injury in service? (c) If not, is any currently diagnosed current cervical disability as least as likely as not proximately due to or the result of (in whole or in part) a current service-connected disability? The examiner is to provide a comprehensive rational for any opinion offered. The examiner must consider lay reports from the Veteran, to include her falling during active service, along with pertinent medical evidence, to include medical literature submitted by her. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 4. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before retuning the case to the Board 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 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. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs