Citation Nr: 1806526 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-08 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to an initial compensable disability rating for the service-connected irritable bowel syndrome (IBS). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to May 2003. This case is before the Board of Veterans' Appeals (Board) on appeal from November 2012 and June 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In the November 2012 rating decision, in pertinent part, the RO granted service connection for IBS and assigned an initial noncompensable rating effective from October 31, 2011. In the June 2014 rating decision, the RO denied entitlement to service connection for a right shoulder disability. The Veteran and his spouse testified at an October 2016 Board hearing. A transcript is of record. FINDINGS OF FACT 1. The Veteran's current right shoulder disability is not related to his military service. 2. Since the effective date of service connection, the Veteran's service-connected IBS has been manifested by intractable diarrhea with more or less constant abdominal distress, resulting in an overall disability picture that more nearly approximates severe IBS. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. Resolving all doubt in the Veteran's favor, the criteria for the assignment of a 30 percent rating for the service-connected IBS have been more nearly approximated since the effective date of service connection. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7319 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). With regard to the right shoulder claim, VA's duty to notify was satisfied by a May 2014 letter to the Veteran. See 38 U.S.C.A. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran's claim for a higher initial rating for the service-connected IBS arises from a disagreement with the initial disability rating that was assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, and additional notice is not required; and, any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. The Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been associated with the record. The Veteran was afforded an IBS examination in October 2012. Any inadequacy with respect to that exam is harmless error because the Board is granting the maximum schedular rating of 30 percent to the Veteran's satisfaction. See Hearing Transcript, p. 33. The Veteran was afforded a VA joints examination in September 2015. The examiner's opinion regarding the origin of the Veteran's right shoulder disability is accompanied by a complete rationale, based on a review of the entire record as well as medical expertise. The Veteran and his spouse provided testimony at a hearing, which was considered along with the other evidence of record. The Veteran submitted additional evidence directly to the Board along with a waiver of review by the Agency of Original Jurisdiction in the first instance. In sum, the Board is satisfied that the agency of original jurisdiction properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection - Right Shoulder The Veteran seeks service connection for a right shoulder disability. He contends that he injured his right shoulder during a fall in service in 2003, at the same time that he injured his right hip. See Hearing Transcript, p.4. The STRs show that the Veteran was treated for right hip pain during service, and service connection was ultimately granted for right hip bursitis in a November 2012 rating decision on the basis that the STRs show that the Veteran re-injured his right thigh muscles in physical therapy exercises shortly after his in-service right orchiectomy surgery. The STRs also confirm that the Veteran received radiation for testicular cancer following the orchiectomy surgery. According to the Veteran's testimony, he re-opened his right orchiectomy incision at the time of the fall, and was more focused on his hip pain and the re-opened incision than the pain in his right shoulder. Hearing Transcript, pp. 4-5. Subsequent follow-up care in March and April 2003 notes right hip pain, but not shoulder pain. Despite the lack of treatment or complaints of shoulder pain in service, the Veteran nevertheless reported shoulder pain on his February 2003 Report of Medical History prior to discharge. He reported severe shoulder pain when lifting weights after losing all of his strength during radiation. He did not report a right shoulder injury. Post service medical records show that the Veteran broke his right clavicle in a May 2004 motorcycle accident. May 2005 x-ray studies reveal a healed right mid clavicle fracture with trap tightness. These records also indicate that the Veteran had no previous problems with the shoulder. The Veteran maintains that his current right shoulder disability had its onset during service, and is unrelated to the broken clavicle. Hearing Transcript, p. 10. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Veteran has a current disability of the right shoulder. More specifically, a January 2014 MRI report indicates that the Veteran has (1) supraspinatus and infraspinatus tendinopathy, with interstitial footprint tear at the junction of the two tendons and probable pinpoint extension to the bursal surface; (2) posterosuperior labral tear with tiny paralabral cyst; (3) mild subacromial/subdeltoid bursitis; (4) possible 4 mm focus of cartilage delamination in the anterioinferior glenoid; and (5) old, healed mid clavicle fracture. Although the Veteran was not treated for shoulder pain during service, he did report shoulder pain at the time of discharge. Even though the Veteran attributed his shoulder pain at discharge to his radiation treatment, and not to a fall, the Board nevertheless has no reason to doubt that right shoulder pain existed at the time of discharge, whatever the cause. Moreover, the Veteran is certainly competent to report the onset of an observable symptoms such as shoulder pain. Accordingly, the only remaining question is whether there is a nexus between the Veteran's current right shoulder disability and the in-service right shoulder pain. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is competent to report shoulder pain, and the onset thereof, because this is a symptom capable of lay observation. However, the Veteran is not competent to provide an opinion as to causation in this case because it involves a complex medical question not capable of lay observation. More specifically, the Veteran's current disability requires imaging to diagnose, and the Veteran does not possess the requisite medical expertise to link his in-service shoulder pain to the presently diagnosed shoulder condition. Even though the Veteran is competent to report that his current shoulder pain is the same pain he felt following the in-service injury, his current right shoulder disability is medically complex and was not objectively demonstrated at the time of service discharge. Therefore, to assist the Veteran in the development of his claim, he was afforded a VA examination in September 2015. The examiner reviewed the entire record, including the Veteran's competent and credible lay statements regarding the in-service injury and the January 2014 MRI report. Following examination of the Veteran's right shoulder, the examiner opined that the Veteran's right rotator cuff tendinopathy with tear, labral tear and subacromial/subdeltoid bursitis were less likely as not attributable to any documented right shoulder injury following testicular radiation treatments and/or to complaints of right shoulder pain noted in the Veteran's separation examination. First, the examiner pointed to a lack of evidence in the STRs to support the Veteran's contention that he injured his shoulder during the same fall in which he injured his right hip. Further, the examiner pointed out that when the Veteran initially filed a claim of service connection for residuals of radiation therapy shortly following discharge from service, he attributed systemic joint clicking and popping (including in the shoulders, hips, elbows, knees, ankles) to the radiation, and did not mention an in-service shoulder injury at that time. Further, at the time of discharge, the Veteran attributed his shoulder pain to loss of strength following radiation, but did not mention any shoulder injury. Finally, the examiner found it notable that the post-service medical records associated with the Veteran's May 2004 right clavicle fracture specifically indicated that the Veteran did not have a previous problem with the shoulder. Additionally, the examiner could not find evidence in the claims file, or in review of medical literature, to support a finding that the current shoulder condition would be likely attributable to trauma from a fall in the distant past. Full range of motion of the right shoulder without documented pain is noted several times in the record after the reported fall and prior to a 2013 diagnosis of right shoulder impingement. The examiner acknowledged that rotator cuff injuries could occur without significant chronic symptoms, but there was insufficient evidence to support such a finding in this case. By contrast, a private examiner opined in October 2016, that, "It does appear that [the Veteran's] shoulder dysfunction occurred during his work with the armed forces." The examiner noted a current disability of right shoulder labral tear, and cited to the January 2014 MRI findings. The examiner noted the Veteran's account of the fall in service, and reasoned that, "There are noted differences between his entrance and exit exams by review." It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, the Board finds that the VA opinion outweighs the private opinion. The VA opinion is based on a review of the entire record, including the evidence contemporaneous in time to the alleged in-service shoulder injury which suggests that the Veteran suffered temporary joint pain following in-service radiation treatment. The VA opinion is also based on the Veteran's lay statements at the time of service discharge, and currently; and a comparison of the current MRI findings to the Veteran's reported symptoms at the time of the injury in service. The opinion was provided with knowledge of the Veteran's reported shoulder pain at the time of discharge from service, but the examiner essentially reasoned that if the current disability was of service origin, chronic symptoms attributable to that type of disability would have likely been shown much earlier than 2013. The examiner also cited to medical literature to support the opinion. By contrast, the private examiner opined that the Veteran's current disability was likely related to service. However, the private examiner relied solely on the fact that shoulder pain was noted at discharge, but not at entry. Moreover, this opinion failed to address other pertinent evidence of record, including the Veteran's self-reported history of temporary loss of muscle mass and joint pain following radiation. The private examiner did not cite to any medical literature to support the opinion, and did not address what effect, if any, the in-service radiation had on the Veteran's shoulder. Accordingly, the private opinion lacks adequate rationale. In light of the foregoing, the Board finds that the opinion of the VA examiner is based on the entire record, while the private examiner's opinion is based on the Veteran's statements and STRs, without consideration of other pertinent medical records. As such, the Board accords a higher probative value to the VA opinion, which outweighs the private opinion. For these reasons, the preponderance of the evidence is against the claim and service connection for a right shoulder disability is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. II. Increased Rating - IBS The Veteran's IBS is rated as noncompensable since the effective date of service connection pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). IBS is rated under the criteria for irritable colon syndrome at Diagnostic Code 7319. Mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, warrants a noncompensable (0 percent) rating. Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, warrants a 10 percent rating. Severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent rating. 38 C.F.R. § 4.114, Diagnostic Code 7319. According to the record, the Veteran currently suffers from intractable diarrhea, which occurs up to 10 times per day. See November 2011 private treatment records, October 2012 VA examination report, October 2013 VA examination report, and, October 2016 hearing transcript, pp. 24-26, 33. Based on these findings, and with resolution of all doubt in favor of the Veteran, the Veteran's disability more nearly approximates the criteria for severe IBS rather than moderate IBS. The Veteran's diarrhea, which occurs numerous times per day, clearly results in abdominal distress; and, when all doubt is resolved in the Veteran's favor, the Board finds that the Veteran's abdominal distress is more or less constant. Accordingly, the criteria for the assignment of a 30 percent rating for the service-connected IBS are more nearly approximated. As the Veteran's IBS symptoms have been relatively consistent since the effective date of service connection, staged ratings are not warranted. Finally, the Veteran is currently employed. Hearing Transcript, p. 11. Accordingly, a claim for individual unemployability is not raised by the record. ORDER Service connection for a right shoulder disability is denied. An initial 30 percent rating, but not higher, for service-connected IBS is granted for the entire period covered by this claim, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs