Citation Nr: 1806784 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-10 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for broken rib residuals. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in the U.S. Navy from July 1954 to September 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In November 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing. A transcript of the hearing is of record. In March 2017, the Board remanded the issues listed on the first page of the decision, in addition to the issues of service connection for posttraumatic stress disorder (PTSD) and service connection for sleep apnea, for Social Security Administration (SSA) records, further attempts to verify the Veteran's claimed stressor events, notice letter that includes explanation of the type of evidence needed to corroborate a service connection claim based on personal assault, and VA examinations with medical opinions for PTSD and sleep apnea, to be followed by readjudication of the issues. In March 2017, the SSA provided a negative response to the Agency of Original Jurisdiction's (AOJ) request for records for the Veteran. In July 2017, VA examinations with medical opinions were provided. In September 2017, the AOJ readjudicated the appeals. In consideration of the foregoing, the Board finds that there has been compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). As a result of the ordered development, in a September 2017 rating decision, service connection was established for PTSD with a 50 percent rating from September 10, 2008, and for sleep apnea with a 50 percent rating from September 10, 2008; therefore, because service connection was established for PTSD and sleep apnea during the course of remand, those issues are no longer before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017) and 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In the September 2000 rating decision, the RO denied reopening of service connection for broken ribs on the bases that there was no evidence to show that the Veteran had broken ribs while in service or evidence of broken ribs residuals. 2. Evidence received since the September 2000 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to a previously unestablished fact of broken ribs during service or residuals of broken ribs demonstrated after service. 3. There was no right shoulder injury or disease during service and chronic symptoms of right shoulder arthritis were not manifested during service. 4. Symptoms of right shoulder arthritis have not been continuous since service separation, and right shoulder arthritis did not manifest to a compensable degree in the year following separation from service. 5. The right shoulder disability was manifested many years after service and is not causally or etiologically related to service. 6. There was no low back injury or disease during service and chronic symptoms of low back arthritis were not manifested during service. 7. Symptoms of low back arthritis have not been continuous since service separation, and low back arthritis did not manifest to a compensable degree in the year following separation from service. 8. The low back disability was manifested many years after service and is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The September 2000 rating decision denying reopening of service connection for broken ribs residuals is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen service connection for broken rib residuals. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for a right shoulder disability, including arthritis, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for a low back disability, including arthritis, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and to establish entitlement to the underlying claim for the benefit sought by the claimant. The claimant must also be notified of what constitutes both "new" and "material" evidence to reopen the previously denied claim. The Court further held that, in the context of a claim to reopen, VA look at the bases for the denial in the prior decision and describe what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In the September 2008 notice letter sent prior to the initial denial of the claims, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claims. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. The September 2008 notice letter satisfied Kent notice requirements. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claims, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. At the Board hearing, the VLJ asked several questions in order to elicit testimony regarding the alleged in-service injury to the right shoulder, low back, and ribs, and past and current symptoms, diagnoses, and treatment for the claimed disabilities. No missing evidence was identified at the Board hearing. In consideration of the foregoing, the Board finds that the duties under 38 C.F.R. § 3.103(c)(2) were met. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. The Veteran has not been provided with VA examinations or medical opinions in connection with the service connection appeals for a right shoulder disability and a back disability; however, no medical examination or medical opinion is needed in this case. New and material evidence has not been received to reopen service connection for the broken ribs residuals; therefore, there was no duty to provide a VA examination or medical opinion under 38 C.F.R. § 3.159 (c)(4)(iii), and none was provided with respect to that appeal. As explained below, the weight of the evidence demonstrates no in-service right shoulder or low back injury or disease, no chronic symptoms of right shoulder arthritis or low back arthritis during service, no continuous symptoms of right shoulder arthritis or low back arthritis since service, and no right shoulder arthritis or low back arthritis manifested to a compensable degree within one year of service. The weight of the evidence also demonstrates no right shoulder disability or low back disability until many years after service. As there is no reasonable possibility that a medical examination or medical opinion would substantiate the issues on appeal, because there is no in-service injury or disease to which a medical opinion could relate a current disability, the Board does not find that any such development is necessary. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. New and Material Evidence Legal Criteria Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id., at 118. Analysis of Reopening Service Connection for Broken Rib Residuals In the September 2000 rating decision, the RO determined that new and material evidence had not been received to reopen service connection for broken ribs on the bases that there was no evidence to show that the Veteran had broken ribs while in service or evidence of broken ribs residuals. In October 2000, the Veteran was notified of that rating decision and provided notice of procedural and appellate rights. Because the Veteran did not appeal the September 2000 rating decision within one year of that notice, and no additional evidence was received within one year of that notice, the September 2000 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. After reviewing the evidence received since the September 2000 rating decision, the Board finds that the additional evidence does not qualify as new and material evidence to reopen service connection for broken rib residuals. None of the evidence added to the record since the September 2000 rating decision tends to show that the Veteran sustained a rib fracture during service or that he has current residuals of a rib fracture; rather, the Veteran's lay statements and hearing testimony added to the record only show the Veteran's continued lay account of having sustained an in-service rib injury after suffering a fall during service, a contention and statements which were previously considered by the RO at the time of the September 2000 final rating decision. The VA treatment records that were added to the record since the September 2000 final decision show treatment for several disabilities but show no report, complaint, diagnosis, or treatment for broken rib residuals. The evidence received since the September 2000 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to the previously unestablished facts of rib fracture sustained during service or current rib fracture residuals. The additional evidence only shows the Veteran's continued lay account of broken ribs sustained during service, which was previously considered at the time of the September 2000 rating decision. For these reasons, the Board finds that the evidence received since the September 2000 rating decision does not relate to a previously unestablished fact necessary to substantiate the claim (i.e., evidence of in-service rib injury or current residuals of broken ribs), so does not raise a reasonable possibility of substantiating the claim for service connection for residuals of broken ribs. For these reasons, the Board finds that new and material evidence has not been received to reopen service connection for broken ribs residuals. See 38 C.F.R. § 3.156(a). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with herniated disc, degenerative disc disease, spinal stenosis, and degenerative joint disease (i.e., arthritis) of the lumbar spine, and osteoarthritis of the right shoulder. Arthritis is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service Connection Analysis for Right Shoulder and Low Back Disabilities At the Board hearing, the Veteran testified that he injured the right shoulder and low back due to an in-service fall from an airplane wing that occurred in May 1955 while on duty and stationed in San Diego. He further testified that, since the in-service fall injury, he has experienced pain in the back and right shoulder. He seeks service connection on these bases. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of a right shoulder or back injury or disease during service or chronic symptoms of right shoulder arthritis or back (i.e., lumbar) arthritis during service. The service treatment records, which are complete, are absent of any report, complaint, diagnosis, or treatment for right shoulder or back problems, including right shoulder arthritis or back arthritis. At the September 1957 service separation examination, the upper extremities, spine and musculoskeletal system were clinically evaluated as normal. Because the service treatment records are complete, show in-service treatment for other medical problems such as athlete's foot, a sore ankle, and lacerations on the right hand, right finger, and left wrist without any notation of right shoulder or back problems, and the upper extremities were clinically evaluated at the September 1957 service separation examination and determined to be normal, the Board finds that a right shoulder and back injury, a right shoulder and back disease, and right shoulder and back arthritis are conditions that would have ordinarily been recorded during service had they occurred; therefore, the lay and medical evidence generated contemporaneous to service, which shows no right shoulder or back injury or disease, and no chronic symptoms of right shoulder or back arthritis during service, is likely to reflect accurately the Veteran's physical condition, so is of significant probative value and provides evidence against a finding of right shoulder and back injury, right shoulder and back disease, or chronic symptoms of right shoulder and back arthritis during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). As the weight of the evidence demonstrates no right shoulder or back injury or disease, or "chronic" symptoms of right shoulder or back arthritis during service, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service are not met. The weight of the evidence is against a finding of continuous symptoms of right shoulder arthritis and back arthritis since service, including to a compensable degree within one year of service separation. At the June 1958 VA examination performed approximately one year after service separation, the June 1958 VA examiner noted that the entire skeletal system was essentially negative clinically. There was no complaint, report, or diagnosis for right shoulder or back symptoms at that time. Rather, the earliest evidence of right shoulder disability shown in the record is in February 1998, approximately 41 years after service. See February 1998 VA physical therapy note. The earliest evidence of back disability shown in the record is in 1996 when the Veteran was 60 years old. At that time, the Veteran reported that that he had experienced back pain for two years since suffering a fall with no mention of a prior back injury or military service; therefore, this evidence, which was dated many years prior to filing the current disability claim, shows that the onset of back problems occurred approximately in 1994, 37 years after service separation. Statements made for treatment purposes are deemed particularly trustworthy because an individual has an incentive to accurately report the history of symptoms in order to receive proper care; therefore, the 1996 statement is deemed credible and of significant probative value. The gap of approximately 41 years between service and the onset of right shoulder symptoms, and the gap of approximately 37 years between service and the onset of back symptoms, is one factor that tends to weigh against a finding of continuous symptoms of right shoulder arthritis and back arthritis after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and evidence of a claimed disability is one factor to consider as evidence against a claim of service connection). As the weight of the evidence demonstrates no "continuous" symptoms of right shoulder arthritis or back arthritis since service, including to a compensable degree within the first post-service year, the criteria under 38 C.F.R. § 3.303(b) for presumptive service connection based on "continuous" symptoms of arthritis manifested to a degree of ten percent within one year of service separation are not met. 38 C.F.R. §§ 3.307, 3.309. The Board has considered the Veteran's competent lay account of right shoulder and back pain during and since service; however, because the account is inconsistent with, and outweighed by, the lay and medical evidence contemporaneous to service showing no right shoulder or back injury, disease, or symptoms, and the post-service lay and medical evidence showing an onset of right shoulder and back problems decades after service, it is not deemed credible, so is of no probative value. A VA medical opinion was not obtained addressing whether any incident, event, or symptoms during service caused the current right shoulder and low back disabilities because such an opinion would be based on the inaccurate factual premise of right shoulder or low back injury, disease, or symptoms during service; therefore, such an opinion would be of no probative value. See generally Bardwell, 24 Vet. App. at 36; see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Although the Veteran has asserted that the current right shoulder and back disability are causally related to service, he is a lay person and, under the specific facts of this case - that include no in-service injury or disease and no chronic or continuous symptoms and denial of relevant symptoms or injury and negative findings at service separation - does not have the requisite medical expertise to be able to diagnose the right shoulder or back disabilities, including arthritis, or render a competent medical opinion regarding their causes. Arthritis is complex and involves unseen systems processes and disease processes that are not observable by the five senses of a lay person, and includes various possible etiologies, only one of which involves trauma to a joint, and is diagnosable only by X-ray or similar specific specialized clinical testing; therefore, under the facts presented in this case, the Veteran is not competent to diagnose right shoulder or back arthritis or to opine as to its etiology. Thus, while the Veteran is competent to relate symptoms of right shoulder and back symptoms that he experienced at any time, in this case, in the absence of in-service right shoulder or back injury, disease, or symptoms as in this case, and evidence that shows post-service onset of symptoms years after service, he is not competent to opine on whether there is a link between the right shoulder disability or back disability including arthritis and active service because such diagnosis and nexus require specific medical knowledge and training. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is "medically complex" for lay diagnosis); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). For these reasons, the Veteran's purported opinion that the current right shoulder and back disabilities, including arthritis, are the result of service is of no probative value. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against service connection for a right shoulder disability and a low back disability under any theory of service connection; therefore, the appeals must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence not having been received, reopening of service connection for broken rib residuals is denied. Service connection for a right shoulder disability is denied. Service connection for a low back disability is denied. ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs