Citation Nr: 1307576	
Decision Date: 03/07/13    Archive Date: 03/11/13

DOCKET NO. 09-39 599	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a right shoulder disorder, characterized as tendinitis and bursitis right bicep.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

L. J. N. Driever



INTRODUCTION

The Veteran had active service from January 1987 to January 2007. 

This claim comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

The Veteran testified in support of his claim during a video conference hearing held before the undersigned Veterans Law Judge in September 2012.

A review of the Virtual VA paperless claims processing system reveals no additional pertinent documents for consideration in support of this claim.


FINDING OF FACT

Bursitis of the right shoulder and tendinitis of the right bicep were incurred in active service.


CONCLUSION OF LAW

The criteria to establish service connection for bursitis of the right shoulder and tendinitis of the right bicep are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. 

Analysis

The Veteran seeks a grant of service connection for a right shoulder/right bicep disability. He asserts that the discomfort associated with this disability initially manifested during active service in 2006, approximately one month before discharge, but after his pre-discharge VA examination, conducted in August 2006. 

The Veteran alleges that in late 2006, he noticed soreness and pain in his right upper extremity while at the gym, which persisted beyond the time frame typically associated with "work out soreness." The Veteran reports that he did not seek medical attention, and believed that the pain would subside. 

The Veteran alleges that during his 20-year period of active service, he fulfilled duties that required physical conditioning and fitness and that he lifted weights and swam as part of his normal routine. He asserts that after his right shoulder and bicep discomfort initially manifested, it worsened and has since been attributed to a diagnosis and necessitated treatment, including physical therapy.

The Veteran has submitted a written statement from G.U., MCPO (Ret.), who served with the Veteran from September 2003 to October 2006. Mr. G.U.'s account reiterates the Veteran's. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. 
§§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). 

To prevail on the issue of service connection, there must be competent evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence).  

Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). 

To establish continuity after discharge, the evidence must demonstrate the following: (1) condition "noted" during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology in certain specified chronic disorders. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id. at 498 (holding that, on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). 

Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012).

Service connection may be presumed for certain medical conditions, including arthritis, if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1110, 1112(a), 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

Post-service medical documents, including private treatment records dated since June 2007 and a report of VA joints examination conducted in July 2007, confirm that the Veteran currently has a disability of the right shoulder and biceps variously diagnosed, including as bursitis and tendinitis. 

The Veteran's September 2012 testimony as to the onset of his right shoulder symptoms is both competent and credible. He reports that he did not seek treatment for right shoulder or biceps complaints during service, or prior to June 2007 on his belief that the symptoms would subside. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson is competent to report lay observable symptoms, but lacking in medical training and expertise, is not competent to diagnose a medical condition); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). 

According to his service treatment records, in July 1997, while seeking treatment for another medical condition, he reported that he had just recently started working out regularly. In addition, G.U.'s September 2009 written statement establishes that the Veteran was still doing so as of late 2006 and corroborates that, on two occasions in the gym during that time frame, the Veteran's experienced right shoulder and biceps complaints as described. 

Approximately six months later, the Veteran underwent a VA examination, during which an examiner diagnosed right shoulder bursitis and right biceps tendinitis. Since then the Veteran has received treatment, including physical therapy, for this disability. The fact that a medical professional examined the Veteran six months after discharge and rendered a right shoulder and biceps diagnosis supports the Veteran's assertion of an earlier onset as it is unlikely that the condition suddenly developed on that day. 

The Veteran, having noted right shoulder and biceps discomfort during service and continuity of the same symptomatology since service, satisfies the first two elements of 38 C.F.R. § 3.303(b). By submitting medical evidence attributing those symptoms to a current right shoulder and biceps disability, he also satisfies the third element of 38 C.F.R. § 3.303(b). In light of this fact, the Board finds that a right shoulder and biceps disability was incurred during service. 

The Board makes no pronouncement as to the severity of the disorder for rating purposes. The RO will assign a disability rating in the first instance. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). 




ORDER

Service connection for bursitis of the right shoulder and tendinitis of the right bicep is granted.


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs