Citation Nr: 0812172 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-44 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for left shoulder impingement syndrome with severe osteoarthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The veteran served on active duty from March 1954 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The veteran requested that he be afforded a Board hearing at the time he filed his substantive appeal in December 2004. The veteran subsequently withdrew his request for a hearing by way of a statement received in January 2005. Accordingly, the Board will adjudicate the claim based on the evidence of record. 38 C.F.R. § 20.704(e) (2007). The veteran's case was remanded to the Appeals Management Center (AMC) for additional development in May 2007. The case is again before the Board for appellate review. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the veteran's left shoulder impingement syndrome with osteoarthritis is related to his active military service. CONCLUSION OF LAW Resolving doubt in favor of the veteran, left shoulder impingement syndrome with severe osteoarthritis was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. Under the VCAA, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In light of the favorable decision for the veteran in this case, any error in the timing or content of VCAA compliance is moot. The veteran claims that he has a left shoulder disability as a result of an injury in service. The veteran's service medical records (SMRs) reveal that he was seen for reports of a dislocated left shoulder in October 1955. On examination there was no evidence of fracture or dislocation. The veteran was noted to be in pain and treated with codeine sulfate, heat treatment, and analgesic balm. The SMRs were negative for any other reference to treatment for a left shoulder injury. A December 1956 psychiatric evaluation noted a history of strained "right" shoulder in 1955 with occasional discomfort when sleeping in the wrong position. VA outpatient treatment reports dated from March 2003 to May 2007 reveal complaints and treatment for shoulder pain and recurrent left shoulder rotator cuff tendonitis. Private treatment reports from G. Fuller, M.D., dated in August 2003 reveal that the veteran was noted to have problems with left shoulder pain off and on over the years. Dr. Fuller indicated that the veteran had a shoulder dislocation and that the veteran's shoulder bothers him from time to time. He assessed the veteran with painful left shoulder with osteoarthritis. Associated with the claims file is a letter from D. Nelson, MPT, dated in September 2003. Mr. Nelson reported that he treated the veteran for left shoulder pain. He said the veteran's injury was chronic in nature and may very well have stemmed from his previous shoulder injury sustained many years ago. Associated with the claims file are private treatment reports from A. Colledge, M.D., dated from December 2003 to May 2004. In December 2003, Dr. Colledge diagnosed the veteran with chronic post-traumatic osteoarthritis of the shoulder and chronic impingement syndrome. He opined the findings seemed to be a direct result of a severe injury that occurred several years ago and the secondary effects from the injury over time. In May 2004, the same diagnoses were reported and Dr. Colledge indicated that the significant injury referred to in his December 2003 statement referred to an injury the veteran sustained in service in 1955. He said the injury has given the veteran contiguous, persistent problems since service and would have been the original precipitating cause of his current shoulder disabilities. He concluded that it was probable that had the veteran not injured his shoulder he would not be in the degenerative position he is in now. Also associated with the claims file is a statement from G. Richards, M.D., dated in July 2004. Dr. Richards reported that the veteran was his patient during the 1960s and that the veteran had bursitis of the left shoulder for which he received Kenalog shots on several occasions. The veteran was afforded a VA examination in September 2004. He diagnosed the veteran with degenerative arthritis of the left shoulder. The examiner reviewed the claims file and indicated that the October 1955 SMR entry which documented a left shoulder dislocation was conflicting because the findings also showed no fracture or dislocation. He said there were no other entries until 2004 at which time the veteran's private physician linked the shoulder arthritis to the service injury. The examiner noted that the veteran worked for twenty-two years as a welder and was able to perform his duties over that period of time. He stated that the veteran's fall could have caused some damage that resulted in arthritis but it was unlikely that it would be first appearing without any previous problems or evaluations. He concluded that although the fall in service is likely contributory to the veteran's development of osteoarthritis of the shoulder, it is less likely to have been the cause of the current shoulder condition. The veteran was afforded a second VA examination in June 2007. The examiner diagnosed the veteran with left shoulder impingement syndrome with severe osteoarthritis in the acromioclavicular joint and mild osteoarthritis in the glenohumeral joint. The examiner reviewed the claims file and noted that the veteran was seen in service in October 1955 with complaints of left shoulder dislocation but that the examination was not compatible with such a diagnosis. The veteran reported that he was treated by a company physician during his twenty-two year career as a welder and informed that he had bursitis. He said he used a sling off and on during his career. He reported no other injuries to his left shoulder and said his pain was chronic and would "come and go." The examiner noted that the medical records of the past four to five years indicate that the veteran had a chronic left shoulder injury or pain from a previous injury as stated in 1955. He said the veteran was a capable historian and was fairly consistent in describing his use of slings during his time of service and while working as a welder. The examiner noted that the medical records associated with the claims file did not document any other injuries to the veteran's left shoulder. The examiner opined that the it is at least as likely as not (greater than a fifty percent probability) that the veteran's left shoulder injury occurred while in service and the subsequent osteoarthritis is at least partially subsequent and secondary to his initial injury based on the medical record and the consistency and chronicity of the veteran's pain. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court) lay observation is competent. If chronicity is not applicable, service connection may still be established on the basis of 38 C.F.R. §3.303(b) if competent evidence, either medical or lay, depending on the circumstances, relates a present disability to symptomatology that has continued since service. Savage v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). Having reviewed the complete record, the Board finds that there is an approximate balance of positive and negative evidence as to whether the veteran's left shoulder impingement syndrome with osteoarthritis is related to service. See Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). The Board notes that the September 2004 VA examiner's opinion appears to be contradictory in that he stated that although the veteran's fall in service was likely contributory to the veteran's development of osteoarthritis of the shoulder, it was less likely to have been the cause of the current shoulder condition. However, both the September 2007 VA examiner and several of the veteran's private physician's concluded that the left shoulder injury in service was as likely as not, or at least partially, the cause of the veteran's current left shoulder impingement syndrome with osteoarthritis. The Board is cognizant that the private physicians' opinions appear to reset, in part, on the veteran's description of his initial injury, and that he occasionally described that injury as a dislocation. As noted, this is not consistent with the findings in-service, at which time examination did not reveal a fracture or dislocation. The Board also notes that the private physicians did not consider that the veteran was involved in a parachute accident in 1973, which could potentially have involved injury to the shoulder, and that he was treated for bursitis while working as a welder for 30 years. However, the 2007 VA examiner specifically noted that the veteran was a capable historian and was fairly consistent in describing his use of slings during his time of service and while working as a welder. The VA examiner also took note of the parachute accident, and the minimal nature of the original injury in service. Nevertheless, the examiner found that the it was at least as likely as not that the veteran's left shoulder injury occurred while in service and that the subsequent osteoarthritis is at least partially subsequent and secondary to his initial injury. The United States Court of Appeals for Veterans Claims (Court) has held that the Board may consider only independent medical evidence to support its findings. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). In this case, a competent VA examiner has reviewed the claims file and clearly taken into account the veteran's complete medical history. Despite the minimal findings noted as to the original in-service injury, that examiner concluded that the in-service injury was at least as likely as not a significant contributing cause of his current left should disorder. Therefore, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether the veteran's left shoulder impingement syndrome with osteoarthritis is related to service. Resolving doubt in the veteran's favor, service connection for left shoulder impingement syndrome with osteoarthritis is granted. ORDER Entitlement to service connection for left shoulder impingement syndrome with osteoarthritis is granted. ____________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs