BVA9505560 DOCKET NO. 93-04 698 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a chronic right shoulder disability. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from September 1990 to October 1991. He also had periods of active duty for training and inactive duty training with the National Guard prior to his period of active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1992 decision by the Department of Veterans Affairs (VA), Jackson, Mississippi, Regional Office (RO), which denied service connection for a chronic right shoulder disability. The veteran testified at a hearing conducted before a member of the Board in February 1993. In June 1993, the Board remanded the issue of entitlement to service connection for a chronic right shoulder disability. After additional development, the RO continued to deny service connection, and the case was returned to the Board in February 1995. The only issue properly before the Board at this time is service connection for a right shoulder disability. The Board notes that in a January 1994 decision the RO denied a claim for a total compensation rating based on individual unemployability, and in February 1994 the veteran filed a related notice of disagreement. In March 1994 the RO issued a statement of the case on this issue, and the veteran was informed of his appellate rights and the need to submit a substantive appeal. The veteran thereafter asked the RO to obtain and consider additional evidence, which the RO did. In July 1994 the RO confirmed the denial of the claim for a total compensation rating based on individual unemployability. The veteran was then issued a supplemental statement of the case in July 1994, and the cover letter of this document reminded him that he still had to complete and return a substantive appeal on the issue. The file indicates that the veteran has not submitted a substantive appeal with regard to the denied claim for a total compensation rating based on individual unemployability. In the absence of a timely substantive appeal, the Board lacks jurisdiction to review the issue, and it is not addressed in the present appellate decision. 38 U.S.C.A. §§ 7104, 7105, 7108 (West 1991); Roy v. Brown, 5 Vet.App. 554 (1993). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his right shoulder disability began during active service. He asserts that he sustained a right shoulder injury while on active duty and has had problems with the joint ever since. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for a chronic right shoulder disability. FINDING OF FACT Right shoulder symptoms during service were acute and transitory and resolved without residual disability; the veteran currently does not have arthritis or any other chronic right shoulder disability. CONCLUSION OF LAW A chronic right shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from September 1990 to October 1991. He also had multiple periods of active duty for training and inactive duty training with the National Guard prior to September 1990. Service medical records from the veteran's National Guard service show that he was seen in August 1984 for complaints of dizziness, numbness of the right shoulder, and intermittent blurry vision. His pain was described as primarily in the back and side of the right neck. Clinical evaluation revealed acute right trapezius spasm. Medication and rest were recommended. The diagnosis was right shoulder muscle spasm. Periodic service examinations in November 1984 and March 1989 were negative for any pertinent abnormal findings. Clinical evaluation of his upper extremities was reported as normal. Service medical records from the veteran's period of active duty show that he was seen in September 1990 for complaints of right shoulder pain of two days duration without any history of injury or trauma. Clinical evaluation of the right shoulder revealed full range of motion, with no deformity or abnormality noted. Treatment consisted of medication. He was seen in October 1990 and continued to complaint of right shoulder pain. Clinical evaluation of the right shoulder in early November 1990 revealed tenderness and full range of motion with pain. The veteran gave a history of right shoulder pain for about two months, worse with activity, and no recent injuries. An X-ray examination of the right shoulder at that time was reported to show hyperostotic spurring of the acromioclavicular joint area, which was chronic in appearance, but it was also noted that there was no abnormal soft tissue calcification or joint space irregularity. The radiological impression was early acromioclavicular joint degenerative change. Sick slips from this period, including one in December 1990, refer to right shoulder problems. The remainder of the veteran's active duty medical records do not mention right shoulder problems. A right shoulder abnormality was not noted at a March 1991 general medical examination for redeployment or at an October 1991 examination for separation from active duty. Post-service VA outpatient clinic records, dated to January 1992, show that the veteran was seen for various ailments, but no mention was made of right shoulder problems. The veteran underwent a VA orthopedic examination in February 1992. He gave a history of right shoulder pain beginning in September 1990 (while on active duty) without an injury. He recalled that he was treated with medication and local injections to the inferior margin of the scapula, which resulted in relief of his symptoms, and he indicated that his shoulder was now symptomatic only with certain motions and pulling with the arm. The orthopedic examination noted various abnormalities concerning unrelated ailments which were diagnosed. The clinical impressions included a history of right shoulder discomfort, apparently a periscapular tendinitis which had been relieved by injection, and it was noted that current examination of the neck was not remarkable. Later VA outpatient clinic records, dated to August 1992, show various ailments but do not refer to a right shoulder disorder. The veteran underwent a National Guard orthopedic examination in November 1992 and a VA neurologic examination in December 1992. The examinations focused on a left ulnar nerve problem; a right shoulder disorder was not noted. Similarly, a February 1993 statement from Clyde Ray McLaurin, M.D., of The Family Health Center, refers to ailments unrelated to the right shoulder. The veteran testified at a hearing conducted before a member of the Board in February 1993 that he "wrecked" or injured his right shoulder during training exercises while on active duty in September 1990. He said that he received medical treatment while stationed in Saudi Arabia during Operation Desert Storm. He asserted that he has had problems with the right shoulder ever since, including limitation of motion of the joint. It was also noted that his service medical records included clinical evidence of limitation of motion of the right shoulder and X-ray evidence of chronic spurring of the right shoulder joint. The veteran underwent a VA orthopedic examination in July 1993. He stated that he had intermittent right shoulder trouble with current pain upon raising the arm, especially overhead. He said that he slept best with the arm across his chest. Clinical evaluation of the right shoulder showed that it was muscular with a full range of motion, but with elevation of 140 degrees. The veteran referred to a pulling sensation at the tip of the scapula, but the examiner could not objectively detect any abnormality. The circumference of the right upper arm matched the left. The clinical impression, pending X-rays which were ordered, was a history suggesting subscapular bursitis or tendinitis of the right shoulder with essentially normal objective findings on orthopedic examination. A subsequently received report indicates that the ordered X-rays of the right shoulder were normal. Ongoing VA outpatient clinic records, dated to April 1994, refer to various ailments but do not mention a right shoulder disorder. II. Analysis The veteran's claim, for service connection for a chronic right shoulder disability, is well grounded, meaning not inherently implausible. Following the Board's 1993 remand, the VA has fulfilled its duty to assist the veteran in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, and service incurrence will be presumed for arthritis which is first manifest to a compensable degree within a year after service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. National Guard medical records from before the veteran's active duty show one episode of right shoulder muscle spasm in August 1984. But this did not represent a chronic disability; subsequent National Guard examinations in November 1984 and March 1989 showed no right shoulder problems. The veteran claims he has a chronic right shoulder disability which began during his period of active duty, September 1990 to October 1991. The service medical records show that the veteran was evaluated on several occasions during the latter part of 1990 for right shoulder symptoms. Clinical findings included tenderness and some limitation of motion of the joint. An X-ray examination during that time was reported to show early degenerative change or arthritis of the shoulder joint, and the spurring that was identified was reported as chronic in nature. Significantly, however, the service medical records from 1991 show no right shoulder problem, and none was evident at the October 1991 separation examination. When, as here, a condition noted during service is not shown to be chronic or a diagnosis of chronicity may be legitimately questioned, then a showing of continuity after service is required to support the claim for service connection. 38 C.F.R. § 3.303(b). The file contains numerous post-service medical records from 1991 to 1994 which are devoid of objective evidence of a chronic right shoulder disorder. A 1992 VA examination noted the veteran's subjective history of the problem, but there were no objective medical findings of chronic disability. These records do not support a finding of continuity of symptoms since service. At his 1993 Board hearing, the veteran alleged the continued existence of a right shoulder disorder since service, although, being a layman, he has no competence to offer a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). It was properly noted at the hearing that the possibility of a chronic right shoulder condition existed in light of the service medical records, particularly the X-ray report which mentioned arthritis. Subsequent to the hearing, the veteran underwent a VA examination in 1993. At that examination the veteran had subjective complaints, but objective findings were normal. The doctor noted that the history was suggestive of bursitis or tendinitis of the right shoulder, yet there were no objective findings to support a current diagnosis. X-rays of the right shoulder showed no arthritis. The Board finds this examination to be persuasive evidence of the current absence of arthritis or any other chronic right shoulder disability. Regardless of a disease or injury in service, service connection may not be granted when there is currently no related disability. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). The evidence as a whole indicates right shoulder symptoms in service were acute and transitory and resolved without residual disability. A chronic right shoulder disability was neither incurred in nor aggravated by service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for a chronic right shoulder disability is denied. L. W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.