Citation Nr: 1816210 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 12-07 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for pancreatitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from September 1973 to March 1986. This appeal to the Board of Veterans' Appeals (Board) is from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in January 2015 and July 2016 for additional development. The issue of service connection for pancreatitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a current right shoulder disability that is related to his service. CONCLUSION OF LAW The criteria are not met for service connection for a right shoulder disability. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met. See April 2010 notice letter. Neither the Veteran nor his representative has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances . . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the Veteran . . . ." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records has been completed, to include records sought as the result of prior remands. To the extent possible, service treatment records, VA and non-VA treatment records, lay statements, and VA examinations and opinions were obtained and associated with the file. Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim. II. Legal Criteria and Analysis Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). 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. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Under the benefit-of-the-doubt rule embodied in 38 U.S.C. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). The Veteran seeks service connection for a right shoulder disability, which he asserts is the result of an injury to his right shoulder in service. After reviewing the evidence of record, the Board finds that service connection for a right shoulder disability is not warranted. In this regard, the evidence of record does establish that the Veteran has a current right shoulder disability. Although there is evidence in the record that indicates the Veteran has right shoulder arthritis, there is no clinical evidence that supports that diagnosis as X-rays have repeatedly been shown to contain no evidence of arthritis. See VA examination received in June 2010, C&P Exam received in March 2015, and CAPRI records received in April 2015. The Veteran does, on the other hand, have current right shoulder diagnoses of subacromial impingement with adhesive capsulitis and tendinopathy. See CAPRI records received in April 2015. The Veteran's service treatment records also show that he sustained a right shoulder injury while playing football in October 1974. X-rays were negative and the assessment was soft tissue injury to the right shoulder. See STR - Medical. Accordingly, medical opinions were obtained to address the question of whether the Veteran's current right shoulder disability was related to his in-service injury. There is no competent medical evidence that links them. After a March 2015 VA opinion was found to be inadequate, another medical opinion was obtained in September 2016. After taking into consideration the medical evidence and the Veteran's lay statements, the physician offered an unfavorable opinion. She explained that the Veteran's in-service October 1976 examination, January 1978 and February 1979 annual flying examinations, December 1979 annual class II examination, September 1981 annual flight physical, December 1982 annual examination, February 1984 annual flying class II examination and January 1985 class II examination were all negative for complaints, diagnosis, treatment, and/or events related to chronic and/or recurrent right shoulder pain and/or pathology. In addition, the Veteran's February 1986 service separation examination was also negative for complaints, diagnosis, treatment, and/or events related to chronic and/or recurrent right shoulder pain and/or pathology. Specifically, there was no arthritis, rheumatism or bursitis, bone, joint or other deformities and/or painful or "trick" shoulder or elbow noted in the report of medical history. Therefore, the physician opined that it was as least as likely as not that the 1974 right shoulder injury was an acute, transient and self-limiting incident because of the lack of objective and/or subjective medically-based, clinical evidence to support recurrent and/or chronic right shoulder condition throughout the Veteran's active duty tours. The physician also noted that the Veteran's medical records indicated he continued to play basketball throughout his active duty periods, and noted that in April 1978 the Veteran had left ankle sprain while playing basketball. Lastly, the physician also observed that the Veteran's presumptive period medical records were silent for any complaints, diagnosis, treatment, re-injury and/or events related to the right shoulder. For these reasons, it was her opinion that it was less likely than not that the Veteran's claimed right shoulder condition was related to and/or aggravated by his military service since the early right shoulder injury was acute, transient and self-limited. Also in response to the Board remand, the physician provided an opinion that it was less likely than not that the progression of the right shoulder pathology included degenerative joint disease as no radiographic interval changes had been seen since 2012. The physician concluded that it was as least as likely as not that the Veteran's claimed right shoulder condition, to include subacromial impingement with adhesive capsulitis, was related to and/or aggravated by his normal aging process, post service employment in the food production industry and being dominantly right handed. See VA examination received in September 2016. The September 2016 VA medical opinion is highly probative since the rationale is consistent with the record and is adequately supported. Notably, there is no favorable opinion of record supporting the claim. Consideration was given to the lay statements that indicate the Veteran has had continuing symptoms since service. In particular, a March 2015 statement from the Veteran's wife asserts she has known him for more than 35 years and during that time he has complained about right shoulder pain and stated that he injured it while playing football in service. See VA 21-4138 received in March 2015. An October 2012 treatment record also shows the Veteran reported having right shoulder problems for 25 years. See CAPRI records received in April 2015. The Veteran is competent to state what he experienced and his wife is competent to report what she observed; however, the reports of continuity of symptomatology are not credible in light of the other evidence of record. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Significantly, these more recent assertions are inconsistent with earlier treatment records. In this regard, there are no complaints of right shoulder problems during service even when the Veteran continued to play sports. See STR - Medical. Furthermore, the earliest post-service treatment records that reflect right shoulder complaints are in 2001 and they indicate the onset of those symptoms was earlier that year. See Medical Treatment record - Government Facility received in March 2010 and VA Examination received in June 2010. The Board finds that statements made many years prior to the filing of the instant claim for service connection are highly probative as they were made during the course of treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). In light of the foregoing, the preponderance of the evidence is against the claim. As the evidence is not in equipoise, the Veteran is not afforded the benefit-of-the-doubt. See 38 U.S.C. § 5107(b); see Gilbert, supra. Thus, service connection is not warranted. ORDER Service connection for a right shoulder disability is denied. REMAND In a February 2015 Notice of Disagreement, the Veteran disagreed with that part of a June 2014 rating decision that denied service connection for pancreatitis. As VA has not yet provided the Veteran with a statement of the case with regard to that issue, the Board must remand the issue so the RO can provide the Veteran with an appropriate statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with a statement of the case in response to his February 2015 Notice of Disagreement with the denial of service connection for pancreatitis (see June 2014 rating decision). The Veteran and his representative must be advised of the time limit for filing a substantive appeal, and that, in order for the Board to have jurisdiction in that matter, he must submit a timely substantive appeal. The claims file should be returned to the Board for further appellate consideration only if he timely perfects the appeal. 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). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs