Citation Nr: 21022163 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-36 816 DATE: April 14, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for an acquired psychiatric disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a right shoulder disability at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran’s acquired psychiatric disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to August 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has received several psychiatric disorder diagnoses. To ensure that all potential psychiatric disorders are contemplated, the Board has recharacterized the issue on appeal. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that this Veteran’s record contains limited post-service treatment records. In this regard, in an April 2013 letter, VA requested that the Veteran complete and return VA Form 21-4142 authorizing the release of VA medical information to VA for the medical treatment providers listed on his January 2011 VA Form 21-526 in support of his claims. To date, the form has not been received. The May 2013 rating decision and the August 2014 SOC (statement of the case) notified the Veteran that a review of VA medical record shows that he has not sought treatment at any VA facility, and available evidence did not show a right shoulder disability, or that any of his acquired psychiatric symptoms were related to service. The duty to assist is a two-way street. If the Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, after requesting postponement of May 2018 and July 2018 scheduled Board videoconference hearings, the Veteran did not appear at his scheduled February 2021 Board videoconference hearing. He has not since provided good cause for missing the hearing nor asked for it to be rescheduled. Accordingly, his request for a hearing is considered withdrawn. Lastly, the Board notes that the Veteran had been represented in this appeal by a private attorney. However, in correspondence dated and received in March 2018 and by motion received in May 2018, the attorney requested to withdraw his representation of the Veteran, which withdrawal was granted by the Board with notice mailed to the attorney in March 2021 and a copy of such notice concurrently mailed to the Veteran. The Board notes that the Veteran’s August 2018 request to postpone for six months was based on his statement that he needed to find new representation, and the Board thus finds the Veteran has been aware that he has not been represented since that time. Thereafter, in April 2019, VA sent a letter requesting a completed form VA Form 21-22 and outlining his options to appoint a representative. Since such time, the Veteran has not appointed a representative; thus, the Board recognizes that he is proceeding pro se. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a right shoulder disability The Veteran contends that he has a right shoulder disability incurred during his active duty service. The Veteran reports onset of the disability in January 1975. See January 2011 VA Form 21-526. However, the Veteran has provided no specific allegations. After a review of the record, the Board finds that there is no competent, credible, and probative evidence that would establish that the Veteran experiences a right shoulder disorder that is etiologically related to his active service. The Veteran’s service treatment records (STRs) contain September 1972 Enlistment Reports of Medical Examination and Medical History showing that the Veteran checked “Normal” lower extremities, “No” swollen or painful joints, arthritis, rheumatism or bursitis, bone joint or other deformity and painful or “trick” shoulder, trouble, and no noted shoulder conditions. There are no complaints of, treatment for or diagnosis of any right shoulder disability in the Veteran’s STRs. The STRs further contain Separation Reports of Medical Examination and Medical History showing that the Veteran checked “Normal” lower extremities, “No” swollen or painful joints, arthritis, rheumatism or bursitis, bone joint or other deformity and painful or “trick” shoulder, trouble, and no noted shoulder conditions. The Board has considered whether the Veteran experienced a right shoulder disorder at any time during the pendency of this appeal or in close proximity to the appeal, even if the disorder has resolved. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289 (2013). In this case, there is no evidence of a right shoulder disorder at any time during the pendency of this appeal or in close proximity thereto. As noted above, there are limited post-service medical treatment records associated with the Veteran’s claims file. There are no VA treatment records of record, and the few private medical treatment records provided by the Veteran are completely silent for any complaints, treatment, or diagnosis of any right shoulder disability. The Board notes the RO’s April 2011 and April 2013 letter requests for additional evidence, including statements from physicians who treated the Veteran either during or after service, the dates of examination of treatment, findings and diagnoses, statements from persons with whom the Veteran served who knew that the condition existed during service, statements from other persons who knew of the Veteran’s condition, medical evidence from hospitals, clinics, and private physicians of treatment since discharge, pharmacy prescription records, insurance examination reports, and/or employment examinations. The Veteran, however, failed to respond to those requests. Additionally, the Board notes that the VA did not provide the Veteran with a VA examination for the purposes of determining the etiology of his right shoulder disorder. In light of the holding in McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds that an examination is not required. McLendon provides that in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case as there is no probative evidence suggesting that a right shoulder disorder had its onset in service or is otherwise related thereto. In this regard, the United States Court of Appeals for Veterans Claims has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that a disability was caused by an in-service event or illness is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Here, the Veteran simply claims he has a current right shoulder disability with onset in January 1975 and he does not describe what caused the right shoulder disability. There is simply nothing of record showing the Veteran has identified any specific in-service event, injury, or illness that caused his right shoulder disorder and his STRs are silent as to any in-service event, injury or illness relating to his right shoulder. Therefore, the Board finds that there is not credible evidence of an event, injury, or disease in service and a VA examination and/or opinion is not necessary to decide the claim. The RO’s May 2013 decision is essentially based on the lack of contemporaneous treatment records. The absence of contemporaneous treatment records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Here, however, there are no in-service complaints or treatment for a right shoulder disability. There is no evidence of any event, injury or illness of any kind involving the Veteran’s right shoulder, nor does he contend that there was such. In fact, on separation from service, the Veteran denied having or having had “swollen or painful joints” or “painful or “trick” shoulder or elbow.” While his entrance and separation reports of medical history show the Veteran marked “Yes” to broken bones, the September 1972 enlistment report notes a pre-service right thumb fracture and because the June 1975 report contains no notations at all relating to any broken bone, and there is no right shoulder complaint of any kind in his STRs, the Board finds the Veteran’s indication of experiencing broken bones does not related to his claim here. Based on the foregoing, the Board finds that the Veteran has not had a right shoulder disability at any time during or approximate to the pendency of the claim. As such, the first element of service connection is not met and service connection for a right shoulder disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for service connection for a right shoulder disability, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. 2. Entitlement to service connection for an acquired psychiatric disability The Veteran contends that his acquired psychiatric disability, which he claimed as post-traumatic stress disorder (PTSD), is related to his active military service. However, here too, the Veteran has provided no specific allegations. Turning to the evidence of record, the Board acknowledges the record contains diagnoses of psychiatric disabilities. See May 2010 and September 2010 Private Medical Hospitalization Records. These diagnoses were made prior to the period on appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007). Nonetheless, the probative and persuasive evidence of record does not show that the Veteran has an acquired psychiatric disorder that had its onset in service, manifested to a compensable degree within a year after separation from service, or is in any way related to service or any event from service. The STRs and military personnel records are silent for complaints of, treatment for and diagnosis of any mental health condition. Both the Veteran’s September 1972 entrance and June 1975 separation examination reports show “Normal” checked for psychiatric conditions and there are no noted psychiatric conditions of any kind. May 2010 and August-September 2010 private hospitalization records show that the Veteran was hospitalized for three days in May 2010 and again for approximately ten days from August-September 2010. The diagnoses rendered on discharge were psychotic disorder, not otherwise specified, sleep disorder due to general medical condition of chronic pain, hyperlipidemia, gastroesophageal reflux disease, general malaise and osteoarthrosis, alcohol dependence, continuous, anxiolytic dependence continuous and bipolar disorder, manic, severe, without psychosis. The May 2010 report shows that the Veteran reported a history of PTSD from September 2009 and “participating in war.” The Board notes that the mere repetition of allegations in a medical record does not transform them into competent medical evidence. LeShore v. Brown, 8 Vet App 406 (1995) (holding that a lay history is not transformed into competent evidence merely because it was transcribed by a medical professional). Indeed, the Board notes that the Veteran’s STRs and military personnel records are silent as to any combat activities, and do not show that his ship was ever in the waters around Vietnam. While his DD 214 shows he received the National Defense Service Medal and had over two years of foreign and/or sea service, there is no indication of record that the Veteran participated in any combat activities. Further, The Board notes that the record does not show that a diagnosis of PTSD has been made at any time according to the evidence of record. Also, May 2010 the report does not show that the Veteran or the medical staff reported any kind of related in-service treatments, complaints or diagnoses, nor does it show that the hospitalization is in any way related to any event, disease or injury in service. The September 2010 report noted that the Veteran was under court order to be hospitalized but does not note any history of PTSD nor does it relate the second hospitalization to any in-service event, disease or injury. After a thorough review of the record, the Board finds the Veteran’s reports of “participating in war” and a history of PTSD to be unreliable. In this case, the probative evidence of record fails to show any in-service event, injury, or disease associated with the Veteran’s current psychiatric disability. Normal clinical evaluation was noted during his June 1975 separation examination, and his STRs and military personnel records are silent as to mental issues or complaints of any kind. In short, there is no indication that any psychiatric diagnosis or disability was present in service, or that the 2010 psychiatric hospitalizations were in any way related to service or any event of service. The Board notes that the VA did not provide the Veteran with a VA examination for the purposes of determining the etiology of his acquired psychiatric disorder. As discussed above, the Board similarly finds here that an examination is not required because there is not credible evidence of an event, injury, or disease during service and the Veteran has offered only a conclusory generalized statement that his current psychiatric disability is due to his active duty service. See Bardwell, 24 Vet. App. 36 and Waters, 601 F.3d at 1278. The Board acknowledges the Veteran’s contention that his acquired psychiatric disability is due to his active military service; however, the Veteran has not submitted any competent lay statements or medical evidence showing any relationship to service or any event of service. The Board acknowledges that the Veteran is competent to relate symptoms within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). However, the question of whether his current psychiatric disability is related to service is a complex medical question, not capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). The Board also again notes the RO’s April 2011 and April 2013 requests to the Veteran for additional evidence, and specifically that the April 2011 letter requested specific details of the stressful incident relating to his claim for service connection for PTSD, with no response from him to date. Because the competent and probative evidence of record fails to reflect a connection between the Veteran’s current psychiatric disability and his military service, service connection for an acquired psychiatric disability is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for service connection for an acquired psychiatric disability, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.