Citation Nr: 1817287	
Decision Date: 03/19/18    Archive Date: 03/30/18

DOCKET NO.  12-05 178	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office (VARO) in Chicago, Illinois


THE ISSUE

Entitlement to service connection for a left shoulder disability.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Poindexter, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from January 1971 to January 1973.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Chicago VARO.  In April 2014, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record.  In September 2014, September 2015 and July 2017, the case was remanded for additional development.  


FINDING OF FACT

A left shoulder injury in service is not shown; a left shoulder disability of service origin was not manifested in service, and arthritis of the shoulder was not manifested in the first postservice year; the Veteran's current left shoulder disability is not shown to be etiologically related to his service/injury therein.


CONCLUSION OF LAW

Service connection for a left shoulder disability is not warranted.  38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)
VA's duty to notify was satisfied by a letter dated in December 2007.  See 38 U.S.C.§§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103 (c)(2) requires a Veterans Law Judge who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked.  During the July 2017 hearing, the undersigned identified the issue on appeal, explained what evidence is needed to substantiate the claim, and identified development to be completed.  Following the hearing, the matter was remanded to assist the Veteran in securing evidence to substantiate his claim.  A deficiency in the conduct of the hearing is not alleged.  The Board finds that there has been compliance with 38 C.F.R. § 3.103 (c)(2), in accordance with Bryant.
The Veteran's service treatment records (STRs) and pertinent postservice private and VA treatment records have been secured.  He was afforded a VA examination in June 2015 (with an addendum opinion in September 2017).  The Board finds the VA examination and addendum opinion (cumulatively) adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  

Legal Criteria, Factual Background, and Analysis

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for a disease initially 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).

To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability.  See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

Certain chronic diseases (to include arthritis) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for arthritis).  38 U.S.C. § 1112; 38 C.F.R.§§ 3.307, 3.309.

Lay evidence may be competent evidence to establish incurrence.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (i) a layperson is competent to identify the medical condition, (e.g., a broken leg, tinnitus), (ii) the layperson is reporting a contemporaneous medical diagnosis, or (iii) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson.  38 C.F.R. § 3.159(a)(2).

Competent medical evidence is necessary where the determinative question requires medical knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Board notes that it has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record.  Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

The Veteran contends that his current left shoulder disability began in service.  A March 1971 (shortly following his entrance on active duty) STR notes a history of an old left humerus fracture.  On November 1972 service separation examination, an elbow deformity was noted to be the only upper extremity abnormality.  A left shoulder disability was not diagnosed.

The earliest postservice clinical record pertaining to the left shoulder is an April 1996 clinical record from Gundersen Clinic which notes the Veteran's complaint of left shoulder pain.  It was noted that the Veteran had no trauma referable to the left shoulder but has experienced a gradual increase in pain over the last year.  On examination, range of motion was "essentially normal" and impingement signs were positive.  The shoulder was stable.  X rays revealed a slightly sloped configuration.  The examiner opined that the Veteran's symptoms were "shoulder impingement in nature".  In October 1996, the Veteran underwent left shoulder acromioplasty, rotator cuff repair.

On June 2015 VA examination, the Veteran reported that he injured his right shoulder playing football in service.  He indicated that he was not sure when he injured his left shoulder, but that it was after [the right shoulder injury sustained] playing football; he ignored it due to right shoulder pain.  He reported flare-ups of "acute severe sharp pain" and functional loss due to pain at rest.  The diagnosis was bilateral shoulder degenerative arthritis.  The examiner opined that the Veteran's current bilateral shoulder degenerative arthritis was not incurred in or related to service.  He noted that a shoulder injury/complaint was not noted in the Veteran's STRs and explained that the fact that the Veteran's degenerative arthritis of the shoulders is bilateral, suggests that it is age related (and not due to trauma).     

April 2016 to March 2017 VA treatment records note the Veteran's reports of left shoulder pain and musculoskeletal radiology guided injections.
In a September 2017 addendum opinion obtained pursuant to the Board's remand, the consulting provider concurred with June 2015 examiner's finding that the Veteran's left shoulder degenerative arthritis was likely age related and was not incurred in, or related to, his service.  The provider noted that the Veteran was examined during service in February 1971, and was found to have a "cubitus varus alignment" of his left elbow.  Radiographs showed an old healed left humerus fracture noted to not be related to, or aggravated in, service.  The examiner opined that the old fracture was likely due a left supracondylar humerus fracture sustained sometime in adolescence or childhood.  He noted that this condition could not be related to any shoulder condition developed later in life.     

It is not in dispute that the Veteran now has a left shoulder disability, as such was diagnosed on June 2015 VA examination.  What remains necessary to substantiate the claim of service connection for a left shoulder disability is evidence that such disability is etiologically related to his service.  Whether or not that is so is a medical question.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  

While the Veteran's STRs note an old healed left humerus (the large bone extending from the shoulder to the elbow) fracture, it was noted soon after his entry on active duty, was noted in conjunction with evaluation of an elbow deformity and was noted to be unrelated to service.  His STRs are silent regarding left shoulder complaints, and on service separation examination a left shoulder disability was not noted on clinical evaluation of the upper extremities.  There is no evidence that a left shoulder disability was manifested in service or clinically demonstrated postservice prior to April 1996.  There is no evidence (nor is it alleged) that arthritis of the shoulder was manifested in the first postservice year.  Accordingly, service connection for a left shoulder disability on the basis that it became manifest in service and persisted, or for left shoulder arthritis on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted.

The Board has also considered whether service connection for the Veteran's left shoulder arthritis may be established by showing continuity of symptomatology (see 38 C.F.R. § 3.303(b).  But continuity of symptomatology is simply not shown. The Veteran's did not report a left shoulder disability on his November 1972 service separation examination.  Moreover, the earliest postservice clinical record pertaining to the left shoulder in the record is dated in April 1996 (more than 23 years after service), at which time onset in service was not reported.   Accordingly, the preponderance of the evidence is against service connection for a shoulder disability based on continuity of symptomatology under 38 C.F.R. § 3.303 (b).

What remains for consideration is whether the Veteran's current left shoulder disability may somehow otherwise be etiologically related to his service.  The only competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran's current left shoulder disability and his service is in the June 2015 examiner's opinion and the September 2017 addendum opinion.  The Board finds that that opinions, cumulatively merits substantial probative weight.  They reflect familiarity with the record/the Veteran's medical history, and include adequate rationale that cites to accurate factual data.  The Board acknowledges that the Veteran asserts that the June 2015 examiner did not review the claims file; however, the June 2015 examination report specifically indicates that the examiner reviewed the Veteran's electronic file, and the Board finds no reason to question the credibility of the provider.  The Veteran asserts that the June 2015 VA examiner was unprofessional and rushed the examination; however, he has not challenged any specific findings made (or finding omitted that would reflect the examination was incomplete).  There is nothing in the record to suggest that the examiner lacks the requisite expertise to conduct an examination and provide the opinion sought in this matter.  See Cox v. Nicholson, 20 Vet. App. 536, 569   (2007) (the "Board is entitled to assume the competence of a VA examiner").

The Veteran has not submitted any medical opinion in support of his claims.  He has not presented any affirmative evidence of a relationship between his left shoulder disability and his service/an undocumented injury therein, and none is suggested by the record.  While he is competent to report that he has pain or discomfort in his shoulder, the diagnosis and etiology of a shoulder disability such as arthritis fall outside the realm of common knowledge of a layperson.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  

In summary, the record establishes that a left shoulder injury in service is not shown; that a chronic left shoulder disability was not manifested in service; that arthritis was not manifested in the first postservice year; and that the Veteran's current left shoulder disability is not otherwise shown by competent evidence to be etiologically related to his service.  The preponderance of the evidence is against this claim.  Accordingly, the appeal in this matter must be denied.


ORDER

Service connection for a left shoulder disability is denied.  


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs