Citation Nr: 1133348	
Decision Date: 09/09/11    Archive Date: 09/15/11

DOCKET NO.  07-34 642A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for a left shoulder disorder.

2.  Entitlement to service connection for a right shoulder disorder.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A.M. Ivory, Counsel


INTRODUCTION

The Veteran had active military service from July 1987 to November 1990 and January 2004 to June 2005.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  In pertinent part of the March 2007 decision, the RO denied service connection for disorders of the right and left shoulders.   

The Veteran testified before a Decision Review Officer (DRO) in June 2007.


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the issues on appeal has been accomplished.  

2.  The Veteran reported joint pain on his report of medical history prior to separation.

3.  The Veteran reported shoulder pain during and since service.

4.  Disorders of the right and left shoulders were diagnosed within 17 months of separation from service.

5.  By granting the Veteran the benefit of the doubt it is as likely as not that his left and right shoulders began during his military service.  



CONCLUSIONS OF LAW

A left shoulder disorder likely had its onset in active service.  38 U.S.C.A. § 1110, 1131, 5.107, 7104 (West 2002); 38 C.F.R. § 3.303 (2010).  

A right shoulder disorder likely had its in active service.  38 U.S.C.A. § 1110, 1131, 5.107, 7104 (West 2002); 38 C.F.R. § 3.303 (2010).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  However, in the decision below, the Board has granted the Veteran's claim for service connection left and right shoulder disorders, and therefore, the benefit sought on appeal has been granted in full.  Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.


II. Analysis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

In order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability.   Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999).  

When all the evidence is assembled, 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 a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran testified that his bilateral shoulder condition manifested by tendonitis and rotator cuff tears began during his second period of military service.  He testified that when he was deployed to Iraq on a one year tour he wore a 20 to 25 pound vest and carried weapons and a duffel bag.  While carrying this heavy weight and going from the hot outdoors to the cold buildings his shoulders began to hurt. He testified he did not seek treatment during service.  After a careful review of the Veteran's claims file the Board finds that by granting the Veteran the benefit of doubt, service connection the left and right shoulder disorders is warranted. 

The Board notes that the Veteran's service treatment records from his first period of military service are unavailable; the RO documented the steps taken to try and obtain these records in a January 2007 Memorandum.  However, the Veteran's service treatment records from his second period of military service contained a May 2005 Report of Deployment Health Assessment Questionnaire.  The Veteran clicked "Yes Now" to having swollen, stiff, or painful joints.  After the Veteran's military service he was seen in November 2006 for pain of the shoulders bilaterally; he denied any injury but reported that he had pain for the past year.  A January 2007 MRI revealed for the left shoulder a distal supraspinatus tendon tear without retraction and minimal AC joint arthrosis without impingement or evidence of acute injury and for the right shoulder minimal distal articular surface supraspinatus tendon tear and minimal AC joint arthrosis without impingement.  
The Veteran was afforded a VA examination in July 2007 and he recalled no specific injury other than overuse, carrying heavy vests, and backpacks on a daily basis.  He recalled no subsequent injury to his shoulders and no problems prior to service.  He reported primarily activity related shoulder pain.  The VA examiner stated that x-ray studies were read as being essentially negative and diagnosed the Veteran with bilateral supraspinatus tears.  The VA examiner opined as follows:

		In my opinion, it is less likely than not that the veteran's 
      present bilateral shoulder condition is directly related 
      to his activities in service.  My rationale is that the 
      Veteran gives a reasonable history of overuse but 
      there is no documentation of any shoulder problem 
      whatsoever in the service medical records while on 
      active duty.  

Report of July 2007 VA examination

The Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard.  Willis v. Derwinski, 1 Vet. App. 66 (1991).  Additionally, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion.  Wilson v. Derwinski, 2 Vet. App 614 (1992).

Here, the examiner found the Veteran to be credible but stated that there was no documentation of shoulder problems in the Veteran's service treatment records.  The Board finds it pertinent, however, as noted above, that the Veteran did report painful joints on his Report of Deployment Health Assessment Questionnaire.  Furthermore, the Board cannot ignore the fact that the Veteran was diagnosed with shoulder problems just over a year after separation from service, and that he has consistently reported shoulder pain since service.  In this case, the Board finds that a layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  

Throughout the course of his communications with VA, the Veteran has consistently maintained that his bilateral shoulder condition began during service.  The Board finds it pertinent that the record contains no evidence showing that the Veteran has ever denied that his current bilateral shoulder condition began in service and that he has consistently maintained that it was not the result of injury but of in-service overuse.  These accounts are entirely consistent with the VA examiner's statement that that "the veteran gives a reasonable history of overuse."  The Board also notes that when the Veteran reported in November 2006 that he had pain for the past year that would bring the onset of his pain to five months after his discharge from service and within the presumptive year.   

After careful review of the record, including the Veteran's credible statements, and giving the benefit of any doubt to the Veteran, the Board finds the evidence for and against the claim to be at least in approximate balance.  Here, the only medical opinion of record is based on the fact that there is no specific in-service documentation of shoulder pain.  As stated above, however, the Veteran's Report of Deployment Health Assessment Questionnaire documents joint pain, the Veteran has reported shoulder pain since service, and the Veteran was diagnosed with bilateral shoulder disorders a little more than a year after separation.  Under such circumstances, resolution of all reasonable doubt shall be in the Veteran's favor.  Consequently, the Board concludes that service connection for the left and right shoulder disorders is warranted.



ORDER

Entitlement to service connection for a left shoulder disorder is granted. 

Entitlement to service connection for a right shoulder disorder is granted.






____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs