Citation Nr: 1205757 Decision Date: 02/15/12 Archive Date: 02/23/12 DOCKET NO. 04-39 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a left arm disability. 3. Entitlement to service connection for Klinefelter's syndrome to include gynecomastia. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, D.S., and M.R. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from March 26 to May 7, 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board reopened claims for service connection for a left arm condition and Klinefelter's syndrome in July 2006, and remanded the case to the RO for further development. The Veteran, D.S, and M.R. presented testimony at a Board hearing in Cleveland in April 2006, and a transcript of the hearing is associated with his claims folder. FINDINGS OF FACT 1. The Veteran's current left shoulder tendonitis with acromioclavicular joint arthritis was not manifest in service and is unrelated to any incident of service. 2. Left arm disability was not manifest in service and is unrelated to any incident of service. 3. The Veteran's Klinefelter's syndrome is a congenital defect and there was no chronic disease or injury superimposed on it in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). 2. The criteria for service connection for a left arm disability are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). 3. The criteria for service connection for Klinefelter's syndrome to include gynecomastia are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in July 2003. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004); and Kent v. Nicholson, 20 Vet. App. 1 (2006), concerning reopening previously disallowed claims. While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, which is required by Dingess, the Board notes that the RO sent the Veteran correspondence in March 2006 that fully complied with Dingess. While this was after the initial rating decision, the Veteran was given an opportunity to submit evidence on this, followed by readjudication, so there is no prejudice to him. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has obtained service treatment records; assisted the Veteran in obtaining evidence; afforded the Veteran examinations in 2006, 2009, and 2010; obtained medical opinions as to the existence and etiology of disabilities; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. The representative argued in September 2009 that the May 2009 VA examination report should have been returned to that examiner because it does not contain sufficient detail concerning the Veteran's left arm claim. However, the December 2006 VA examination report does, so remand for such is not required. The Board notes that the July 2006 remand had required the examiners to review the claims folder, and that it was not available to the VA neurologist in December 2006. However, since it was not available, the neurologist obtained an electromyogram and thereafter found that the Veteran does not have a neurological reason for his complaints of left arm numbness. His left arm disability claim is being disposed of on the basis that there is no current left arm disability, and the examiner at that time thoroughly examined the Veteran for one. There is no harm alleged or shown. Furthermore, another examination was conducted in 2010, again unfavorable to the claim. A VA medical opinion was obtained on the matter of service connection for Klinefelter's syndrome in October 2011. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Pertinent criteria Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Congenital or developmental defects are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303(c). Left Shoulder The RO denied service connection for left shoulder disability in February 2004. The Veteran claims that he injured his left shoulder in service by or when marching with a rifle in his left arm, and that he has had continued symptomatology from that injury ever since service, thus warranting service connection. Service medical records show questionable left breast trauma and complaints of left breast swelling, pain, and tenderness. The Veteran had left gynecomastia and ultimately, the diagnosis was Klinefelter's syndrome. On service discharge examination in April 1969, the Veteran's shoulder was normal. He specifically denied shoulder complaints. The first indication of a left shoulder problem post-service was in June 1981, when the Veteran was seen privately and had a decreased range of motion of his left shoulder. He was noted to be a machine operator. An X-ray of his left shoulder was normal. He was shown shoulder range of motion exercises to prevent frozen shoulder. In April 2002, the Veteran told a private physician that he had had shoulder strain in service after carrying a rifle over his shoulder. In May 2002, his posterior muscles of his left shoulder girdle had slight atrophy. A VA examination was conducted in December 2006, and at that time, the Veteran had pain on motion of his left shoulder and X-rays documented acromioclavicular joint arthritis in both shoulders. The examiner diagnosed tendonitis to the left shoulder with acromioclavicular joint arthritis. The examiner noted that the Veteran had reported having a rifle fall on his shoulder in service, and having some black and blue areas in his shoulder in service, and continued symptoms since then. However, the examiner concluded that it was not likely that his current symptoms were related to his one incident in service, but were more likely a naturally occurring phenomenon since he had acromioclavicular joint arthritis in both his left and right shoulder. On VA examination in May 2009, the Veteran reported injuring his left shoulder in basic training. He stated had been marching with a rifle and the rifle fell off. He further reported couldn't feel his arm and it was all bruised and that it took 5 days to get his feeling back. The Veteran also stated that prior to that, he had been flat chested. The diagnosis was residuals of left brachial plexus injury and the examiner commented that it was more likely than not that current shoulder disability and numbness of the left arm were direct results of service. Another VA examination was conducted in March 2010. At the time, the Veteran told a history of a sudden loss of feeling and strength in his left upper extremity from his shoulder to his fingers in service, after marching with his rifle strapped over his left shoulder in basic training, and being unable to move his left arm at all after this. He indicated that his strength in his left upper extremity never returned to normal after that. The examiner was unable to find any details about paresthesias of the Veteran's left upper extremity in his service treatment records. However, his diagnosis was residual injury of the left shoulder with decreased range of motion and paresthesias of the left upper extremity, and he felt that the onset of the symptoms and their continuance since the in-service injury made it more likely than not that the current left shoulder injury with symptoms was related to the in-service injury. After carefully weighing the totality of the evidence, the Board concludes that service connection is not warranted for a left shoulder disability. The Board finds that various inconsistencies in the Veteran's statements render his statements regarding an inservice injury to the left shoulder not credible. The evidence persuasively shows that the Veteran did not have any left shoulder complaints in service, was not diagnosed with a left shoulder disorder in service, and had a normal left shoulder on service discharge examination in April 1969. X-rays of his left shoulder were normal years later in June 1981 and he had bilateral shoulder acromioclavicular joint arthritis by X-ray in December 2006. The Board recognizes that the VA internist who examined the Veteran in May 2009 reported that it was more likely than not that the Veteran's current shoulder disability and numbness of his arm resulted from his active service. However, this opinion was based on the Veteran's self-reported history of an in-service shoulder injury and of in-service symptoms which the Board finds to be not credible. The service treatment records do not show a brachial plexus or left shoulder injury while in basic training, and the Veteran did not complain of any left shoulder symptoms or of being unable to feel his arm or of having it all bruised in service, which is what he told the May 2009 examiner had occurred in service. Moreover, his shoulder was normal on service discharge examination, and a VA neurologist examined the Veteran in December 2006 and based on the results of an electromyogram, concluded that the Veteran had no neurological reason for his complaints. There is also a May 2009 VA orthopedic examination report which the Board discounts as it is also based on history furnished by the Veteran which is not credible. The VA orthopedist felt in May 2009 that it was more likely than not that the Veteran had residual injury to his left shoulder related to his service-connected injury from carrying a rifle in 1969, and falling onto it, but he felt that the injury was due to accommodation of nerve pain, and no current nerve disorder is shown, as demonstrated by the December 2006 VA examination report which considered an electromyogram and concluded that there was no neurological reason for the Veteran's complaints. Furthermore, no nerve pain was reported in service. The VA orthopedist in May 2009 also felt that current left shoulder injury residuals were due to accommodation of shoulder pain. However, no shoulder pain is objectively shown in service. None was reported in the Veteran's service medical records, he denied having or having had shoulder symptoms on service examination in April 1969, and his left shoulder was normal at that time. While there is a March 2010 VA examination report which ties the Veteran's current left shoulder disability to an in-service left shoulder injury, based on the Veteran's statement of an in-service injury and continued symptoms since then, the Veteran's history of an in-service injury and of continued symptoms since that time is not credible, and so the medical opinion based on it is of no probative value. No injury is shown in the service treatment records, and at about the time of the alleged in-service injury, service treatment records indicated that the Veteran had had gynecomastia for 2 1/2 years prior. Furthermore, he had denied shoulder problems on service discharge examination. This is in contrast to the Veteran's statements in some of the post-service medical records indicating that he had injured his left shoulder and arm and that only then was Klinefelter's detected. His statements about service injury and continuity of symptoms since then are not credible. In sum, it appears that the Veteran did not injure his shoulder in service, even though there is recent testimony that he did. The Board finds it highly significant that the Veteran underwent medical examination and testing during service with regard to the Klinefelter's, but at no time did he refer to any injury to the left shoulder. The Veteran's current assertions are simply inconsistent with what he reported to medical personnel during service. Further , his service treatment records show that his complaints concerned his left breast, and that his deep tendon reflexes of his upper extremities were normal. Also, the Veteran told the May 2009 examiner of continuity of symptoms since service, and he has contended elsewhere that he has had the same, but this is not supported. He had a normal shoulder on service examination in April 1969 and denied having or having had a painful or trick shoulder at that time. He filed a claim for arm numbness and Klinefelter's in April 1997 without mentioning a left shoulder disorder. The first complaint of shoulder problems treated was in June 1981, and the Veteran had a normal range of motion and strength of his shoulder at that time. Shoulder arthritis was not shown by X-rays. He also had a full range of motion with no pain to palpation of his left shoulder when evaluated privately in September 1998, and 5/5 strength in his upper extremities on private evaluation in April 2000. The May 2009 diagnosis of residuals of shoulder injury is not probative as it is based on a service history which is not credible. The preponderance of the evidence is against the left shoulder claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Left arm The Veteran again argues that his left arm and hand went numb and turned blue in service after he was marching with a rifle in his left arm and on his left shoulder in service, and that he has continued to have the numbness symptoms since service. As such, he feels that service connection is warranted for a left arm condition. Service treatment records show treatment for questionable trauma to the left breast in April 1969. There is no mention of any left arm numbness or any other left arm symptoms, and the Veteran's deep tendon reflexes were normal in his upper extremities in April 1969. He had gynecomastia and small testes and was diagnosed with Klinefelter's syndrome after a buccal smear was positive for sex chromatin. He denied having or having had pertinent symptomatology including painful elbow, lameness, neuritis, and paralysis on service examination in April 1969, and his left arm was examined and found to be normal. His upper extremity deep tendon reflexes were normal on consultation. On private evaluation in June 1981, the Veteran complained of recurrent left arm numbness that would last for 10-20 minutes and then hurt for 10 days. It always occurred after jarring or injury. Once after the numbness, he had had severe pain with blanching of the 3rd and 4th digits and had purplish finger tips. This had happened the previous Sunday. X-rays had been negative in 1979 and he was told in 1979 that it was in his head. Neurologically, he was intact in June 1981. The Veteran was seen privately for left hand pain in August 1996, and he appeared to have some hypertrophy of the left hypothenar eminence. He stated at that time that he had had some type of foreign body present there in the past. In May 2000, private evaluation revealed 5/5 strength of his upper extremities and deep tendon reflexes which were 2/4 in the upper and lower extremities. In June 2000, the Veteran had no focal defects and his sensation was intact and he was assessed with tingling/numbness in his extremities secondary to diabetes. In March 2001, the Veteran denied weakness of his arms. In June 2001, the Veteran reported some very intermittent weakness on his left side for the past few months. In April 2002, a long history of intermittent numbness and weakness in his left arm was reported. The Veteran attributed it to neck and shoulder strain while he was in the military, and he stated that his arm had not been right since. In May 2002, he had normal strength in both upper extremities. Private evaluation in April 2003 revealed the Veteran to complain that a left shoulder injury in service caused complete temporary paralysis of his left arm, which eventually returned. No motor deficits were appreciated on range of motion testing. The Board remanded the case to the RO in July 2006 for a VA examination to determine whether the Veteran had any current disability of his left arm manifested by numbness which was causally related to service. A VA examiner in December 2006 felt that he might have thoracic outlet syndrome but wanted to get an electromyogram to see if there was cervical radiculopathy or peripheral neuropathy or thoracic outlet syndrome to explain the symptoms. The examiner opined that the Veteran's episodes were as likely as not to have occurred due to his service, but later on in December 2006, an electromyogram was performed and the results were consistent with polyneuropathy of the upper and lower extremities possibly due to diabetes mellitus. The physiatrist stated that there was no definite electrophysiological evidence of cervical radiculopathy or neurogenic thoracic outlet syndrome in the left upper extremity. After this, the neurologist reviewed the electromyogram results and stated that as such, there was nothing to explain the Veteran's complaint. The neurologist stated that the presence of a mild peripheral neuropathy in all limbs, with a negative needle exam, could not explain the Veteran's unilateral findings. As such, there did not seem to be a neurological reason for his complaints. A May 2009 VA examination report by a VA internist indicates that the Veteran reported injuring his left shoulder in basic training. He relayed that he was marching with a rifle and the rifle fell off. He continued that he could not feel his arm and the arm was all bruised. It took 3 days to get the feeling back. The Veteran reported that since then, the arm wears out and drops with lifting, reaching, etc. Examination revealed 5/5 elbow strength, arm flexion and extension, and handgrip. The diagnosis was residuals of left brachial plexus injury. The examiner felt that it was more likely than not that the current numbness of the Veteran's left arm was a direct result of the Veteran's active duty. The Board remanded the case again in January 2010, for another VA examination. The examiner felt that the Veteran had residual injury to his left shoulder and gave the opinion mentioned above in the shoulder discussion, concerning it being more likely than not related to service due to the onset of the Veteran's symptoms at the time of the service injury and the persistence of symptoms ever since then. After considering the evidence in its entirety, the Board concludes that service connection is not warranted for a left arm disorder. To begin with, it is arguable that the evidence does not show a left arm disability. The December 2006 VA examiner who examined the Veteran and considered his history and electromyogram before determining that there did not seem to be a neurological reason for the Veteran's complaints. At any rate, assuming for the sake of this analysis that there is current arm disability, the preponderance of the evidence is against a finding that such is related to service. As discussed in the analysis for the left shoulder, the Board finds the Veteran's statements and assertions regarding a left arm (and left shoulder) injury during service not credible. The Veteran failed to report such injuries to medical personnel during service during the course of being examined for the cause of Klinefelter's symptoms. Moreover, he expressly denied shoulder pain at the time of his discharge examination, and medical personnel clinically evaluated his upper extremities as normal at that time. This demonstrates that the Veteran himself, as well as trained medical personnel, were of the opinion that there were no residuals of any left shoulder or left arm injury. The Veteran's statements in the course of advancing his claim are simply inconsistent with the contemporaneous facts. Klinefelter's Syndrome The Veteran contends that service connection is warranted for Klinefelter's syndrome. He had not noticed or been diagnosed with it before service. He feels that it was brought on in service, and that at the least, it became worse due to carrying a rifle in service. Every veteran is presumed to have been in sound condition at the time of acceptance for service, except for defects, infirmities, or disorders noted at that time or where clear and unmistakable evidence demonstrates that the disability or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-03. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2009). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b) (2009). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (providing that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). Congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2009). VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306 (2009). According to the VA General Counsel's opinion, however, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. The Veteran was diagnosed with Klinefelter's syndrome with gynecomastia in service. There was a history of tender swelling of the left breast for 2 1/2 years, and a questionable history of recent trauma to the left breast. His testes were small. He had left greater than right gynecomastia. A VA physician indicated in December 2006 that males who have Klinefelter's syndrome are born with it, and that they do not acquire it after birth. It is manifested by chromosomal abnormalities and peripheral manifestations that are unchangeable. The examiner specifically stated that nothing in service or in other activities of daily living can alter the constituent elements of Klinefelter's, including but not limited to testicular size and or function, gynecomastia, or the risk of development of diabetes. (The Veteran has developed diabetes mellitus also). She also stated that nothing in the Veteran's 42 days of service increased the severity of any of the constituent elements of his Klinefelter's syndrome. Also, a VA examiner indicated in April 2010 that Klinefelter's syndrome is due to a chromosomal abnormality which is present at birth, and that manifestations of Klinefelter's syndrome are not significantly impacted by environmental factors. Finally, in October 2011, a VA examiner indicated that the Veteran's Klinefelter's syndrome is a congenital defect of genetic origin and is not service-connected. The examiner indicated that this opinion has a sound scientific basis which is well recognized by scientists and the medical community. Given this information, it is obvious that the Veteran's Klinefelter's syndrome must be considered to be a congenital defect under the law. The VA physician in December 2006 indicated that it is a congenital chromosomal abnormality which is unchangeable, and the examiner in April 2010 indicated that it is due to a chromosomal abnormality which is present at birth and is not significantly impacted by environmental factors. Then, a VA examiner in October 2011 clearly and unequivocally indicated that the Veteran's Klinefelter's syndrome is a congenital defect, of genetic origin. As a congenital defect under the law, it is not subject to service connection unless there was superimposed disease or injury in service. Although a VA physician indicated in May 2009 that since the Veteran's left breast enlarged decades prior to his right breast, it was more likely than not that the Veteran's chromosomal condition was aggravated by service, his Klinefelter's syndrome is a congenital defect which cannot be service-connected. There is no indication of a superimposed chronic disease or injury in service, and the examiner in December 2006 indicated that nothing in service or in other activities of daily living can alter the constituent elements of Klinefelter's, including but not limited to testicular size or gynecomastia. Moreover, the examiner in April 2010 indicated that Klinefelter's is not significantly impacted by environmental factors. In light of the above, service connection is not warranted for Klinefelter's syndrome. The representative in September 2009 points out that service connection can be granted for hereditary diseases. However, the evidence does not show that Klinefelter's syndrome is a hereditary disease; instead, it shows that it is a congenital defect. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER The appeal is denied as to all three issues. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs