Citation Nr: 1809033 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 09-12 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to January 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held in March 2012 before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record. In September 2012, February 2015, and March 2016, the Board remanded the claim for additional evidentiary development. The case has now been returned for further appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager (Virtual VA) paperless claims file associated with the Veteran's claim. FINDING OF FACT A chronic left shoulder disorder was not manifested in active service or within one year of service separation; any current left shoulder disorder is not otherwise etiologically related to such service. CONCLUSION OF LAW A left shoulder disability was not incurred in or aggravated by active military service and arthritis of the shoulder may not be presumed to have been. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify was satisfied by December 2007, March 2012, August 2012, September 2012, and April 2016 letters. See 38 U.S.C. §§ 5102, 5103, 5013A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As for the duty to assist, VA obtained all available service treatment records (STRs), service personnel records, and all pertinent treatment records. This matter was remanded by the Board for further development on multiple occasions. Specifically, in October 2011, the claim was remanded for a hearing before a VLJ. A travel Board hearing was conducted in March 2012. In September 2012, the Board remanded the claim primarily for a VA examination to determine the nature and etiology of any left shoulder disorder found to be present. The requested examination was conducted in October 2012, but in February 2015, the claim was remanded again in order to obtain records pertaining to the left shoulder from 1976 to the present as such records could corroborate the Veteran's contentions regarding ongoing left shoulder problems since injury during service. In March 2016, the Board once again remanded the claim in order to obtain such records. Records from The Western Pennsylvania Hospital were added to the record, but they are negative for left shoulder treatment. A report of contact from May 2016 reflects that Forbes Hospital was contacted, but no records of the Veteran were found. Additional VA examination report of June 2016 was added to the record which included review of the entire claims file with opinion provided as to the etiology of any left shoulder disorder. Review of this report reflects that the examiner adequately addressed the questions contained in the remand directives and provided a factual and medical basis for the answers. As such, the Board finds that all remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection - In General 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 (2012); 38 C.F.R. § 3.303 (2017). 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) (2017). In addition, certain chronic diseases (e.g., arthritis) may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The chronicity provisions are applicable where evidence, regardless of its date, show that a veteran had a chronic condition, as defined in 38 C.F.R. § 3.309(a) (2017), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2017). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2017). The United states Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). 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. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); 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 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 Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Background The Veteran's STRs reflect that the Veteran was seen in November 1974 for left shoulder complaints. At that time, he endorsed pain that had been present for several days. He noticed it when catching a basketball that was behind him. He had full range of motion without tenderness on palpation, and the shoulder was noted to be level. The diagnosis was left shoulder strain, and he was to rest it for two months, and to return to the clinic as needed. This treatment was at the Lowry Air Force Based (AFB) in Colorado. No further treatment is indicated during service, to include review of treatment records from Osan, Korea. Upon discharge examination in June 1975, the Veteran reported a preservice injury to the clavicle but he did not remember which side. He reported a painful shoulder. Post service VA records show that the Veteran was seen in January 2001 for left shoulder pain which occurred after he reached up with his left arm to put a file back in place. He felt immediate pain in the left shoulder which continued. He gave a medical history that included possible dislocation about 27 years earlier and another rotator cuff injury about 15 years earlier. X-ray was negative for acute fracture or subluxation. There was minimal irregularity of the superolateral portion of the left humeral head, probably due to trauma. The possibility of damage to the labrum or capsule could not be ruled out. VA records in April 2006 reflect complaints of left shoulder pain and weakness. The diagnosis was left rotator cuff tendonitis. In December 2007, the assessment was history of rotator cuff injury. Examination showed no joint swelling, deformity, or crepitus, and with normal range of motion. No diagnosis was provided. Subsequently dated records through 2008 are negative for left shoulder complaints. At the 2012 hearing, the Veteran testified that he underwent left shoulder surgery at a private facility (West Penn Hospital) in Pittsburgh, Pennsylvania, shortly after service separation (in approximately 1979). As already indicated, attempts were made to obtain such records without success. When examined by VA in April 2012, the diagnosis was rotator cuff injury, left shoulder with residual recurrent dislocation. Upon further VA examination in October 2012, it was noted that left shoulder flexion and abduction were to 160 degrees with pain. He was able to perform repetitive use testing with three repetitions. There was no additional limitation in range of motion following repetitive use testing. There was no functional loss or functional impairment of the shoulder. There was no localized tenderness or pain on palpation of the joint. According to the examiner, recurrence was the natural history of traumatic shoulder dislocations. Having a positive apprehension sign and relocation sign on the physical examination correlated with this history. The examiner stated that if everything the Veteran mentioned on exam was true, his left shoulder chronic instability was most likely related to his military service. However, the examiner pointed out that the record did not have such documentation that the Veteran ever dislocated his shoulder. Specifically, there was no X-ray evidence. A VA examination was conducted in October 2012. There were no signs/symptoms due to arthroscopic or other shoulder surgery, including no scars (surgical or otherwise). No degenerative or traumatic arthritis was shown on x-ray. Additional attempts were made to obtain records corroborating the Veteran's claims of post service left shoulder surgery and treatment without success. As already noted, records added from The Western Pennsylvania Hospital are negative for complaints of or treatment for a left shoulder disorder. No records were available from Forbes Hospital. After review of the record, a VA examiner opined in June 2016 that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness. For rationale, she noted that the records supported that his inservice left shoulder strain fully resolved and that the time span from that injury and post service problems did not support or substantiate the Veteran's claim that he had ongoing left shoulder problems after that initial injury. Thus, any current left shoulder "issue or condition/disorder" was unrelated to military service. Analysis In this case, the Board finds that there is no evidence of a chronic left shoulder disability in service. The evidence reflects that this inservice left shoulder strain resolved as indicated by the fact that there was no post service medical evidence of additional left shoulder problems until 2001 and after an intercurring injury. While the Veteran claims treatment for left shoulder problems in the years after service discharge, numerous attempt to obtain such corroborating records were unsuccessful. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between any current left shoulder problem and his active service, and in this case, the answer is that there is not. The preponderance of the evidence is against this aspect of the Veteran's claim. With no x-ray evidence of arthritis, continuity of symptomatology is not applicable. The Veteran has not produced a competent medical opinion in support of his claim, and the report of a June 2016 VA examination contains a negative etiological opinion. Further, the Board has found the Veteran's statements regarding the onset and continuity of symptomatology are not credible. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 200) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). See also Mense v. Derwinski, 1 Vet. Ap. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance J. concurring) (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. There is no physical evidence (scarring) of shoulder surgery in the first few years after discharge, although the Veteran reported such. No records thereof could be located. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a left shoulder disorder, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107 (2012). (CONTINUED ON NEXT PAGE) ORDER Service connection for a left shoulder disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs