Citation Nr: 1736631	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-02 316	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a left shoulder disorder, to include as secondary to a service-connected left wrist disability.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Y. Lee, Associate Counsel

INTRODUCTION

The Veteran served on active duty with the United States Army from July 1989 to June 1990.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In December 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.  

In January 2015, the Board remanded the Veteran's claim for further evidentiary development.  A review of the record reflects substantial compliance with the Board's Remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The VA Appeals Management Center (AMC) continued the previous denial in a November 2016 supplemental statement of the case (SSOC).  

The Board notes that in the January 2015 decision, the Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder, directing the RO to issue a statement of the case (SOC) on the issue.  In accordance with the remand directive, a SOC for this issue was issued in August 2016.  The SOC continued the previous denial.  The Veteran has not yet filed a VA Form 9 on this issue, and as such, the issue of entitlement to service connection for an acquired psychiatric disorder is not presently before the Board.  Thus, the issue is not ripe for appellate disposition.  

The Board further notes that prior to his current representation, the Veteran was represented by Disabled American Veterans.  




FINDING OF FACT

The Veteran does not have a current disability of the left shoulder that manifested during, or as a result of, active military service, nor does he have a current disability of the left shoulder that was caused by, or aggravated by, a service-connected disability.  


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected disability, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 1153, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306(b), 3.307, 3.309, 3.310 (2016).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that he is entitled to service connection for a left shoulder disability.  However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a left shoulder disability that manifested during, or as a result of, active military service, or, a disability that was either caused by or aggravated by a service-connected disability.  As such, the claim of entitlement to service connection for a left shoulder disability is not warranted.  

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.A. §§ 1110, 1131 (West 2014).  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).  

In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service.  38 C.F.R. §§ 3.307, 3.309(a).  The presumption is rebuttable by probative evidence to the contrary.  38 U.S.C.A. 
§§ 1101, 1112, 1113 (West 2014); 38 C.F.R. § 3.309, 3.309(a).  When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991).  Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value.  

Finally, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  

The Veteran's service treatment records do not reflect that he suffered a chronic injury to the left shoulder during active military service.  In the Veteran's May 1990 separation examination report, the examiner noted that the Veteran suffered from persistent left wrist discomfort, and that he did not suffer from any other conditions.  The only remarks made upon examination were with regard to the Veteran's left wrist injury.  The report does not contain any notes referencing a left shoulder injury.  As such, the service treatment records fail to demonstrate that the Veteran suffered from a chronic disability of the left shoulder at the time of his separation from active duty.  

Likewise, post-service treatment records fail to reflect that the Veteran suffered from a chronic disability of the left shoulder, or chronic symptomatology, within one year of his separation from active duty.  During the December 2014 hearing, the Veteran testified that he first complained about his left shoulder in 1991 with a VA examiner.  However, the July 1991 VA examination report makes no reference to complaints made by the Veteran with regard to his left shoulder.  The September 1992 VA examination report makes no such reference as well.  

On VA examination in February 1998, nearly eight years after separation, the examiner noted tenderness of the anterior acromion of the Veteran's left shoulder.  The examiner diagnosed the Veteran with left shoulder impingement that appeared to be mild-to-moderately symptomatic depending on his activity level.  

In June 2003, a VA examination of the left shoulder revealed full active range of motion with no complaints or discomfort.  The examiner noted that the Veteran had no symptoms on impingement or supraspinatus maneuvers.  He concluded that there was no indication that pathology with regard to the left shoulder might be causally related to the Veteran's scaphoid fracture.  

During a subsequent VA examination in November 2008, inconsistent with the testimony provided in December 2014, the Veteran reported that he did not recall any specific injury to his left shoulder, and that it just started hurting in 2003, a lapse of 13 years since the Veteran's separation from active duty.  The examiner concluded that the Veteran's left shoulder disability was not secondary to the service-connected left wrist fracture.  The examiner further indicated that if the Veteran had suffered a significant injury to the left shoulder at the time of the wrist fracture, he would have had some symptoms associated with the left shoulder.  Thus, as the Veteran did not report pain to the left shoulder until 2003, the examiner opined that there was no relationship between his left shoulder injury and his previous left wrist fracture.  

In August 2016 and October 2016, addendum opinions to the November 2008 VA examination were provided.  The examiner reiterated what was concluded in the November 2008 VA examination and added that that the Veteran's left shoulder injury was less likely than not aggravated beyond its natural progression by his service-connected left wrist fracture, as one extremity joint does not aggravate or cause pathology in other extremity joints.  

The Board acknowledges that the Veteran contends his left shoulder pain began in service and has continued on and off since then.  While the Veteran is competent to report symptoms and in-service events, the Board unfortunately cannot find the Veteran credible in his assertions that he has had left shoulder pain since service.  In determining whether statements submitted by a claimant are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence, and statements made during treatment.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

The Board finds the Veteran's assertions that his left shoulder pain began in service and continued thereafter to be inconsistent with the other (lay and medical) evidence of record.  As noted above, the Veteran has reported two different time periods for the onset of pain in his left shoulder.  During the December 2014 hearing, the Veteran reported first complaining about his left shoulder in 1991.  However, on a separate occasion, as noted in the November 2008 VA examination, the Veteran reported first experiencing pain in the left shoulder in 2003.  

Although the Veteran complained of almost constant left shoulder pain as a result of his left wrist fracture, treating providers consistently found that his left shoulder injury was not causally related to his left wrist fracture, as there would have been symptoms to the left shoulder at the time of the left wrist injury in 1989.  Whether the onset of pain to the left shoulder occurred in 1991 or 2003, as reported by the Veteran on two separate occasions, both time periods are far removed from the 1989 incident of the left wrist fracture.  Furthermore, as indicated above, the July 1991 VA examination report makes no reference to complaints made by the Veteran with regard to his left shoulder.  

Thus, the foregoing inconsistencies and direct contradictions in the record weigh against the Veteran's credibility as to the assertion of onset during and continuity of symptoms since service.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  

It is important to point out that the Board does not find that the Veteran's lay statements of the onset and etiology of his left shoulder pain lack credibility merely because they are unaccompanied by contemporaneous medical evidence.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").  Rather, the lay statements are found to lack credibility because they are inconsistent with the evidence of record discussed above.  

Finally, to the extent that the Veteran himself asserts that he suffers from a service-related left shoulder disability, such assertions do not provide persuasive support for the claim.  While the Board does not doubt the sincerity of the Veteran's beliefs, he simply is not competent to establish either the diagnosis or etiology of the claimed disability on the basis of his own lay assertions.  

Although lay persons are competent to provide opinions on some medical issues, providing an opinion as to the diagnosis and etiology of a complex disability as a shoulder condition falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Kahana, 24 Vet. App. at 435.  Accordingly, the Veteran's opinions in this regard are not competent, and are therefore of no probative value in this case.  

In sum, the most competent and probative medical evidence shows that the Veteran's left shoulder disability did not manifest in service or within the one-year presumptive period, and the most probative evidence fails to link it to the Veteran's service, including as secondary to the Veteran's service-connected left wrist injury.  
Under these circumstances, the claim on appeal must be denied.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, there simply is no competent, probative evidence to support the current disability and medical nexus elements of the claim.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  

Procedural Duties

VA has completed the necessary steps in order to meet its duties to notify and assist in this case.  The Appellant has not raised any procedural arguments regarding the notice or assistance provided.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

ORDER

Entitlement to service connection for a left shoulder disorder, to include as secondary to a service-connected left wrist disability, is denied.  


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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