Citation Nr: 0927214 Decision Date: 07/21/09 Archive Date: 07/30/09 DOCKET NO. 06-16 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a right shoulder condition. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the above claim. FINDING OF FACT The preponderance of the medical evidence shows that the Veteran's right shoulder condition was not present in service, or for many years thereafter, and is not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in March 2005 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b) as stated above. In light of the denial of the Veteran's claim for service connection, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the duty to assist, the RO has obtained the Veteran's service, private, and VA treatment records and provided him with a VA examination. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection The Veteran contends that his right shoulder partial rotator cuff tear, rotator cuff tendonitis, and acromioclavicular (AC) joint degenerative joint disease (DJD) are related to a right shoulder dislocation when he slipped and fell on a wet floor while in service in June 1969. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A Veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Because it is undisputed that the Veteran dislocated his right shoulder during service, and has been diagnosed with a right shoulder partial rotator cuff tear, rotator cuff tendonitis, and AC joint DJD, the Board will focus on the evidence that pertains to whether the Veteran's current right shoulder condition is related to his military service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service treatment records indicate that, in June 1969, the Veteran dislocated his shoulder and had shoulder joint pain. Following the June 1969 dislocation, there is no evidence of further in-service treatment for his right shoulder. Additionally, at his January 1971 separation examination, the Veteran was noted to have normal upper extremities. Post-service, an October 1971 VA examination report reveals that the Veteran reported off-and-on pain in his right shoulder, which he dislocated once in service with no recurring dislocations. The examiner stated that his right shoulder was negative for a current disability and diagnosed him with a history of shoulder dislocation. VA treatment records dated in August 1986 indicate that the Veteran complained of progressive right shoulder pain in the right shoulder joint, status post two instances of right shoulder dislocation during service. The doctor diagnosed him with a contusive lesion of the right shoulder joint, but did not provide an opinion as to the etiology of this condition. X-rays ordered that day revealed intact glenohumeral joint space and no abnormal calcifications. In an October 1986 letter, Dr. Aciscolo M. Marxuach reported that the Veteran began seeking treatment from him for right shoulder pain in March 1985 and that x-rays taken of the right shoulder in May 1985 were normal. Treatment records from Hato Rey Orthopedic Associates are largely illegible, but indicate that the Veteran received treatment for a right shoulder condition from October 2004 to January 2005. In November 2004, Dr. Jose Hernandez Bonilla reported that the Veteran had been referred to his hospital because he was still having pain after a fall during active duty. Dr. Bonilla reported that a November 2004 MRI revealed partial tears involving the supraspinous and subscapularis tendons with fluid collection along the coracohumeral ligament and degenerative changes of the AC joint. In a September 2005 letter, Dr. Evelyn Matta Fontanet reported that the Veteran had a rotator cuff tear of the right shoulder that had caused pain for several years. She noted that the Veteran had been treated at a VA Medical Center several years earlier, but that the pain never improved. In October 2005, an unidentified doctor reported that the Veteran was treated for pain and weakness in his right shoulder that began after shoulder trauma during service around 1969; the doctor diagnosed him with DJD of the right shoulder AC joint. Treatment records from Centro Terapia Fisica Rio Grande indicate that, in January 2006, the Veteran again sought treatment for right shoulder pain. Additionally, an October 2008 VA treatment record indicates that the Veteran complained of neck and shoulder pain. In October 2008, the Board remanded the claim to afford the Veteran a VA examination to obtain a medical opinion. In compliance with the Board's remand instructions, in April 2009 the Veteran was afforded a VA orthopedic examination. At the outset of the examination report, the examiner indicated that he had reviewed the Veteran's claims folder. After discussing his pertinent history and the findings of his physical examination, the examiner diagnosed the Veteran with a partial right shoulder rotator cuff tear, rotator cuff tendonitis, and AC joint DJD. He also provided the opinion that the Veteran's current right shoulder disability was not at least as likely as not due to his military service. The examiner based this opinion on the lack of concrete medical evidence of a right shoulder condition during the remainder of his military career and the lack of treatment for his right shoulder for more than 15 years after separation from service. In this regard, the examiner pointed out that the only evidence of a right shoulder injury was a service treatment record dated in June 1969, which noted that the Veteran had dislocated his right shoulder the night before, but no formal evaluation was made, he had no follow-up appointments, he was not placed on profile, he remained in service for 2 years after the injury, and had no noted right shoulder conditions or abnormalities at his separation examination. The examiner also noted that the Veteran underwent a VA examination in 1986, 15 years following separation from service, when x-rays showed no right shoulder abnormality. Finally, the examiner noted that just because a patient dislocates their shoulder, it does not necessarily mean that they also have a rotator cuff tear. Based on the foregoing, the evidence does not show that the Veteran's right shoulder condition was incurred during service. The Veteran was first diagnosed with a contusive lesion of the right shoulder joint in August 1986, 15 years following separation from service; partial tears of the right shoulder tendons and degenerative changes of the AC joint were not diagnosed until November 2004, more than 30 years after separation from service. Significantly, there is no competent medical evidence of record showing that these conditions had their onset during active service or were related to any in-service disease or injury. Rather, the April 2009 VA examiner specifically found that the Veteran's partial right shoulder rotator cuff tear, rotator cuff tendonitis, and AC joint DJD were not at least as likely as not due to his military service. Additionally, while several of the Veteran's treating doctors have noted his reported history of shoulder pain since a right shoulder dislocation during service, the Board points out that evidence that is simply information recorded by a medical examiner, unenhanced by additional medical comment by that examiner, does not constitute "competent medical evidence" and a bare transcription of lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. See Howell v. Nicholson, 19 Vet. App. 535, 539 (2006); LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As such, because the assessment of the April 2009 VA examiner constitutes the only competent medical evidence addressing whether the Veteran's right shoulder disability is related to service, the Board finds that the preponderance of the evidence is against the claim and thus service connection for this condition must be denied. Further, although the Veteran has stated that his right shoulder condition began when he dislocated his shoulder during service and has continued since, the Board finds that his statements are not credible. Specifically, the Board points out that the Veteran sought no further treatment for his right shoulder during the remaining two years of service after the June 1969 dislocation, did not report any upper extremity abnormalities on his January 1971 separation examination, had no right shoulder disabilities at his October 1971 VA examination, and did not seek treatment for his right shoulder until 1985, almost 15 years after separation from service. As such, the Veteran's contentions of having right shoulder pain since the June 1969 dislocation are outweighed by the contemporaneous medical evidence; the lack of any documented treatment for a right shoulder condition for 15 years after the in-service dislocation preponderates against a finding that he has had this condition since service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by the Veteran). The Veteran's credibility is further diminished by the fact that he has provided an inconsistent history of his right shoulder condition to different treating doctors. Specifically, while he has reported to several doctors and two VA examiners that his right shoulder pain began after the 1969 dislocation, with no subsequent in-service dislocations, in August 1986 he reported to a VA doctor that he dislocated his right shoulder twice during service, and during September 2005 treatment with Dr. Fontanet, he indicated that his shoulder pain had only been present for several years, ever since a rotator cuff tear. Moreover, the Court has held that in adjudicating a claim, VA can consider that the appellant has a personal interest in the outcome of the proceeding and that this may affect the credibility of his testimony. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Finally, the Board points out that, as a lay person, the Veteran is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions because such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (2008) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Because the Veteran is not professionally qualified to offer a diagnosis or suggest a possible medical etiology, the Board finds that the preponderance of the evidence is against the claim. For the reasons and bases provided above, the preponderance of the evidence in this case is against the Veteran's claim for service connection for a right shoulder condition. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). Accordingly, the Veteran's claim for service connection for this disability is denied. ORDER Service connection for a right shoulder injury is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs