Citation Nr: 0002468 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 95-32 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a left shoulder disability as a result of the veteran's service-connected recurrent right shoulder dislocations. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Keith W. Allen, Counsel INTRODUCTION The veteran served on active duty in the military from February 1956 to February 1958. In May 1995, the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, denied the veteran's claim for service connection for a left shoulder disability-which he premised on a theory of direct incurrence in service or aggravation during service of a preexisting condition. The RO also denied his claim seeking a higher (i.e., increased) rating for his service-connected right shoulder disability (residuals of recurrent dislocations). Subsequently, in February 1996, the RO also denied service connection for the left shoulder disability on an alternative theory-as secondary to the service-connected right shoulder disability. The veteran appealed the RO's decisions to the Board of Veterans' Appeals (Board). During a hearing at the RO in September 1997 before the undersigned Member of the Board, who was on a travel assignment, the veteran withdrew an additional claim that he had appealed for service connection for diabetes mellitus. Also during the hearing, he raised the issue of his possible entitlement to a total disability rating based on individual unemployability due to his service-connected conditions (TDIU). In February 1998, the Board denied the veteran's claim for service connection for the left shoulder disability to the extent it was premised on the theory of direct incurrence in service or aggravation of a preexisting condition. The Board also denied his claim seeking a higher rating for his right shoulder disability. The Board remanded-for further development and consideration-his claim for the left shoulder disability insofar as it was premised on the theory that he developed it secondary to the service-connected right shoulder disability. The Board also referred his claim for a TDIU to the RO for appropriate action. Because he had moved, the RO in Winston-Salem transferred the veteran's claims folder to the RO in Roanoke, Virginia, which now has jurisdiction over his appeal. However, since the RO did not complete all of the development requested by the Board in its February 1998 remand, the Board again had to remand his claim to the RO in August 1998. The RO since has completed the development requested and continued to deny service connection for the left shoulder disability secondary to the service-connected right shoulder disability. Consequently, the RO has returned the case to the Board for further appellate consideration of this issue. FINDINGS OF FACT 1. There is no competent medical evidence of record suggesting that the veteran's left shoulder disability is proximately due to or the result of his service-connected right shoulder disability or that the left shoulder disability was aggravated by the service-connected right shoulder disability. 2. The veteran's claim for service connection for the left shoulder disability-secondary to the service-connected right shoulder disability-is not plausible. CONCLUSION OF LAW The veteran's claim for service connection for the left shoulder disability-secondary to the service-connected right shoulder disability-is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran alleges that he developed a left shoulder disability as a result of his service-connected recurrent right shoulder dislocations. In VA adjudication, this sort of claim is commonly referred to as one for "secondary" service connection. Service connection may be granted on this secondary basis if there is competent medical evidence indicating the left shoulder disability is proximately due to or the result of the service-connected right shoulder disability. See 38 C.F.R. § 3.310(a). Additionally, the United States Court of Appeals for Veterans Claims (Court)-formerly, the United States Court of Veterans Appeals-has interpreted section 3.310(a) to permit service connection on a secondary basis for the degree of aggravation of a condition that is proximately due to or the result of a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, however, although there is medical evidence confirming that the veteran has a left shoulder disability (diagnoses have included degenerative joint disease, arthralgia, etc.), there is no medical evidence whatsoever suggesting there is a correlation or relationship of any sort between the impairment in his left shoulder and his service-connected right shoulder disability. Such evidence is necessary to well ground his claim. See Velez v. West, 11 Vet. App. 148, 158 (1998). This is especially important to note in light of the fact that a VA orthopedic physician who examined him in March 1999-at the request of the Board for the specific purpose of obtaining a medical opinion concerning this dispositive issue-concluded that no such relationship exists in this instance. That VA examiner also pointed out that, based on his review of the evidence pertinent to this case, the veteran had given several varying accounts as to how (and when) he injured his left shoulder-sometimes claiming that it was due exclusively to impairment stemming from his right shoulder disability, whereas at other times acknowledging that it was due to totally unrelated factors (e.g., injuries sustained in motor vehicle accidents in 1993 and 1995). However, even were the Board to ignore his conflicting accounts and assume that his allegations are credible would not provide a plausible basis for well grounding his claim because there still is no competent medical nexus evidence linking any of his left shoulder pathology to his service- connected right shoulder disability. See Anderson v. West, 12 Vet. App. 491, 496 (1999); Locher v. Brown, 9 Vet. App. 535, 538-39 (1996), citing Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Medical nexus evidence-and not just allegations-is required to well ground his claim. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Moreover, since neither he nor his representative is found to possess the necessary medical expertise and/or training to give a competent opinion on the determinative issue of medical causation, their allegations, including personal hearing testimony, purporting to do so have no probative value. King v. Brown, 5 Vet. App. 19, 21 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Since the veteran has not satisfied his initial burden of submitting evidence sufficient to show that his claim for service connection for a left shoulder disability (secondary to the service-connected right shoulder disability) is well grounded, VA is under no "duty to assist" him in developing the evidence pertinent to his claim. See Morton v. West, 12 Vet. App. 477 (1999); Epps, 126 F.3d at 1468 (1997). Moreover, the Board is aware of no circumstances in this case that would put VA on notice that any additional relevant evidence may exist that, if obtained, would make the claim well grounded. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). The RO denied the veteran's claim on essentially the same basis as the Board-due to the absence of any medical nexus evidence suggesting there is a correlation between the impairment in his left shoulder and his service-connected right shoulder disability. Obviously then, he is not prejudiced by the Board's decision to deny his claim in this manner. See Bernard v. Brown, 4 Vet. App. 384, 392-93 (1993). The RO also apprised him in the February 1996 and September 1999 Supplemental Statements of the Case of the need to submit medical evidence showing that his claim is well grounded by suggesting that his left shoulder disability is the result of his service-connected right shoulder disability. Therefore, the Board considers this decision as sufficient to inform him of the evidence necessary to well ground his claim and warrant further consideration on the merits. See 38 U.S.C.A. § 5103(a) (West 1999); Franzen v. Brown, 9 Vet. App. 235, 238 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER As evidence of a well-grounded claim has not been submitted, service connection for the left shoulder disability- secondary to the service-connected right shoulder disability-is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals