Citation Nr: 1648528	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  11-08 911	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for a left shoulder disability.

2.  Entitlement to service connection for a right shoulder disability.  

3.  Entitlement to service connection for a torn right rotator cuff.  

4.  Entitlement to service connection for a cervical spine disability.

5.  Entitlement to service connection for a bilateral upper extremity neurological disorder, claimed as bilateral carpal tunnel syndrome and cervical radiculopathy. 


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

Jaime M. Porter, Associate Counsel


INTRODUCTION

The Appellant served on active duty from July 1985 to November 1985.  In addition, the Appellant served in the Coast Guard Reserve, with active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) during various periods from November 1985 to June 2001, and in the Army National Guard of Michigan, with ACDUTRA and INACDUTRA during various periods from September 2004 to January 2009.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  

The issues of entitlement to service connection for a right shoulder condition; entitlement to service connection for a torn right rotator cuff; entitlement to service connection for a cervical spine disorder; and entitlement to service connection for a bilateral upper extremity neurological disorder, claimed as bilateral carpal tunnel syndrome and cervical radiculopathy; are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The most probative evidence of record does not reflect a current diagnosis of a left shoulder disability.


CONCLUSION OF LAW

The criteria for service connection for a left shoulder disability are not met.  38 U.S.C.A. §§ 1110, 5100, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In this case, a VA letter issued in November 2008 satisfied the duty to notify provisions with respect to service connection as it notified the Appellant of the criteria pertinent to the establishment of service connection, an effective date, and a disability rating.  See Dingess/Hartman, 19 Vet. App. at 486.

With regard to the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Appellant.  Specifically, the RO obtained and associated with the claims file the Appellant's service treatment records and identified private treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Appellant was provided a VA examination in March 2009.  When VA provides a medical examination or obtains a medical opinion, it must ensure that the examination or opinion is adequate.  See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, the examiner reviewed the claims file; examined the Appellant and conducted appropriate diagnostic testing; interviewed the Appellant about his medical history and the functional aspects of his disability; and provided a written opinion articulating the reasoning for his medical conclusion.  Therefore, the Board finds that the March 2009 examination is adequate.  See Barr, 21 Vet. App. at 312; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

There is no indication in the record that any additional evidence relevant to the issue adjudicated in this decision is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 112.  Moreover, because there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield, 20 Vet. App. at 537; see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Legal Criteria

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).  To establish service connection for a disability, a veteran 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, 1167 (Fed. Cir. 2004).

In adjudicating the claim below, the Board has reviewed all of the evidence in the Appellant's claims folder.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims folder shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Analysis

The Appellant asserts that he has a left shoulder disability due to heavy lifting during service, including during periods of ACDUTRA and INACDUTRA from September 2004 to January 2009.  

The Appellant's service treatment records do not reveal a diagnosed left shoulder disability nor demonstrate complaints related to a left shoulder injury.  Similarly, the Appellant's post-service medical treatment records do not reflect any diagnosis pertaining to his left shoulder.  

The Appellant was provided a VA shoulder examination in March 2009.  According to the report of examination, the Appellant was surprised that his bilateral shoulders were being assessed and stated that there was nothing wrong with his left shoulder.  On examination, no left shoulder abnormalities were noted, and the Appellant exhibited full range of motion.  An x-ray of the left shoulder showed that the humeral head was well-seated in the glenoid; the subacromial space was maintained; and there was no dislocation or abnormal soft tissue calcification.  Based on this examination, the VA examiner concluded that there was insufficient evidence to warrant a diagnosis of an acute or chronic left shoulder disorder or residuals thereof.  Thus, the examiner opined that without a left shoulder disability, there was no basis on which to find a nexus between the Appellant's service and any left shoulder disability.

The Board assigns great probative value to the VA examination report as to whether the Appellant has a disability of the left shoulder.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion).  The examiner, who has medical expertise, noted the Appellant's reported symptoms, examined the Appellant, and concluded that there was no evidence of a left shoulder disability.  Moreover, the Appellant has not described any symptoms of a left shoulder disability during the pendency of this appeal.  In fact, he denied having left shoulder problems during the VA examination.  Based on these facts, the Board concludes that the most probative evidence of record indicates that the Appellant does not have a current disability of the left shoulder.  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In the absence of proof of a current disability, there can be no valid claim.  Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed); see also McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (evidence of disability preceding the date of claim should also be considered with regard to its probative value towards whether a disability existed at the date of filing of the claim).  In view of the foregoing, the Board must conclude that the preponderance of the evidence is against the Appellant's claim.  As the Board finds that the requirement of a current disability has not been met, the Board need not address the other elements of service connection.  See, e.g., Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998).  The preponderance of the evidence is against the claim, thus the benefit-of-the-doubt doctrine is not for application and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for a left shoulder disability is denied.  


REMAND

The Appellant contends that he is entitled to service connection for a torn right rotator cuff, a right shoulder disability other than torn rotator cuff, a cervical spine disability, and a bilateral upper extremity neurological disorder, due to onset and/or aggravation during his periods of military service, including ACDUTRA and INACDUTRA service in the Army National Guard of Michigan. 

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015).  To establish service connection on a direct incurrence basis, a veteran 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, 1167 (Fed. Cir. 2004). 

Under VA regulations, in addition to a disability incurred in or aggravated by active duty, service connection may be granted when the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty during a period of active duty for training (ACDUTRA), and when the individual became disabled or died from an injury incurred or aggravated in the line of duty during inactive duty training (INACDUTRA).  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6.  

ACDUTRA includes full time duty performed by members of the National Guard of any state or the Reservists.  38 C.F.R. § 3.6(c).  INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state.  38 C.F.R. § 3.6(d).  When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training, or as a result of injury incurred or aggravated in the line of duty during the period of inactive duty training.  38 U.S.C.A. §§ 101(2), (24), and 1110; 38 C.F.R. § 3.6(a); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)).

The record reflects that the Appellant had active service from July 1985 to November 1985, with additional service in the Coast Guard Reserve from November 1985 to June 2001, and in the Army National Guard of Michigan, from September 2004 to January 2009.  According to the Appellant, his claimed disabilities either onset or were aggravated during periods of ACDUTRA and INACDUTRA in the Army National Guard.  Consequently, it is critical to determine the exact circumstances and dates of the Appellant's service in the Army National Guard, including exactly when he was on ACDUTRA and INACDUTRA.  To date, there has not been complete verification of the Appellant's periods of service in the Army National Guard for the period from September 2004 to January 2009, to include verification of periods of active duty, ACDUTRA, and INACDUTRA service.  Accordingly, the Board finds that a remand is necessary to obtain the specific dates related to all active duty, ACDUTRA, and/or INACDUTRA service in the Army National Guard of Michigan.  

In addition, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Appellant was provided a VA examination in March 2009.  However, the Board finds the examination report inadequate.  Adjudication of the Appellant's service connection claims requires determination and consideration of the duty status of the Appellant at the time of his complaints, treatment, or diagnoses, and such information is not of record.  Further, the VA examiner did not opine as to whether any of the Appellant's claimed disabilities was aggravated by ACDUTRA or INACDUTRA.  For example, the examiner did not address the October 2008 opinion of Dr. K. Y., who stated, "I do not feel [Appellant] can continue to work in the military with his current job title.  [H]is current job with the military has exacerbated his cervical disk disorder as well as his rotator cuff injury."

With regard to the Appellant's right shoulder disability and torn right rotator cuff, the examiner did not specify whether the Appellant's current symptoms of aching, pain with overhead movements, and reduced ability to lift, are residuals of his torn right rotator cuff or attributable to a different shoulder disability.  The Board notes that a short-term disability benefits form completed by an orthopedist in November 2007 reflects a history of right shoulder impingement, citing a July 2006 MRI that showed degenerative joint disease with impingement.   However, the March 2009 examiner did not consider this evidence or assess whether the Appellant's current right shoulder symptoms constitute residuals of his torn rotator cuff or relate to some other disability.

In light of the above, the Board finds that remand is necessary to determine the Appellant's service dates, to include all periods of ACDUTRA and INACDUTRA, and to obtain new VA examinations and opinions.

Accordingly, the case is REMANDED for the following action:

1.  Obtain and verify the specific dates and types of all military service of the Appellant, for all periods of active duty, ACDUTRA, and INACDUTRA.  Contact all appropriate sources, including the National Personnel Records Center, the Record Management Center, the Army Human Resources Command, the Defense Finance and Accounting Service, or other appropriate records custodians as necessary to verify the dates of the Appellant's periods of service and duty status.  All attempts to obtain this information should be documented in the electronic claims file.  The Appellant and his representative must be notified of any inability to obtain the requested information.

2.  Thereafter, issue a memorandum for inclusion in the electronic claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA.

3.  Once the above development is completed, forward the Appellant's claims file to an appropriate VA clinician(s) for an opinion as to the etiology of his torn right rotator cuff, any right shoulder disability other than a torn right rotator cuff, bilateral carpal tunnel syndrome with cervical radiculopathy, and cervical spine disability.  The examiner must review the evidence of record and be advised that only the Appellant's confirmed periods of active duty, ACDUTRA, and INACDUTRA may be considered to determine whether the claimed disabilities are related to service.  After a review of the claims file, and with consideration of the Appellant's statements concerning symptoms experienced before, during, and after periods of active duty, ACDUTRA and INACDUTRA, the examiner should provide the following opinions:

(a)  Whether it is at least as likely as not (50 percent or greater probability) that the Appellant's torn right rotator cuff is caused or aggravated by his service.  The examiner should specifically address the October 2008 opinion of Dr. K. Y. that the Appellant's service in the Army National Guard exacerbated his rotator cuff injury;

(b)  Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right shoulder disability other than a torn rotator cuff is caused or aggravated by the Appellant's service.  The examiner should specifically address whether any current shoulder symptoms are residuals of the Appellant's torn right rotator cuff or related to a separate disability.  The examiner should also discuss the significance, if any, of the Appellant's July 2006 MRI results showing right shoulder degenerative joint disease with impingement;

(c)  Whether it is at least as likely as not (50 percent or greater probability) that the Appellant's bilateral carpal tunnel syndrome with cervical radiculopathy is caused or aggravated by his service; and

(d)  Whether it is at least as likely as not (50 percent or greater probability) that the Appellant's cervical spine disability is caused or aggravated by his service.  The examiner should specifically address the October 2008 opinion of Dr. K. Y. that the Appellant's service in the Army National Guard exacerbated his cervical disc disorder.
   
Rationale must be provided for each opinion proffered.

Aggravation exists when there is an increase in disability during service that is not due to the natural progress of the disease.  Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as opposed to symptoms, is worsened.

The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it.

4.  After completing the above, readjudicate the issues on appeal, with consideration of all evidence of record.  If any benefit sought on appeal remains denied, the Appellant and his representative should be provided a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs