Citation Nr: 1310865 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 07-23 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1963 to September 1973. He also had service with the United States Army Reserves beginning in 1984. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for bilateral shoulder disabilities and bilateral hearing loss. By rating decision dated in May 2008, service connection for hearing loss was granted. The case was remanded by the Board in November 2009 to ascertain if the Veteran was on "active service" at the time of a June 1987 motor vehicle accident and to obtain a VA medical examination. After a determination that the Veteran was not on active duty, active duty for training, or inactive duty training at the time of a motor vehicle accident in June 1987, the examiner was to render an opinion regarding whether the Veteran's current right shoulder disability was related to right shoulder complaints made by the Veteran while he was on active duty during the 1960s. The negative nexus opinion rendered did not adequately address the question of a possible relationship between current disability and the right shoulder complaints in the 1960s. The case was again remanded by the Board in May 2011 for an addendum medical opinion. This was accomplished in June 2011 and the case has been returned for appellate consideration. FINDINGS OF FACT 1. Complaints of right shoulder disability were manifested during service in April 1966, from November 1967 until January 1968, and in January 1969. 2. Complaints of left shoulder disability were manifested during service in June 1972. 3. The Veteran sustained an intercurrent injury of the right shoulder in a June 1987 motor vehicle accident. 4. It is not possible to differentiate the Veteran's current right shoulder disability, now diagnosed as right shoulder postoperative arthroscopy for rotator cuff injury with excision of the distal clavicle, from disability noted while the Veteran was on active duty and disability from the non-service-connected motor vehicle accident in June 1987. 5. The Veteran's left shoulder disability, now diagnosed as moderate degenerative joint disease of the left acromioclavicular (AC) joint, is at least as likely as not related to overuse syndrome resulting from the Veteran's right shoulder disability. CONCLUSIONS OF LAW 1. A right shoulder disability, diagnosed as right shoulder postoperative arthroscopy for rotator cuff injury with excision of the distal clavicle, was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A left shoulder disability, diagnosed as moderate degenerative joint disease of the AC joint, is caused or aggravated by a service-connected disease or disability. 38 C.F.R. § 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of the claims. An April 2006 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran has also been afforded VA medical examinations in connection with the claim, most recently in May 2010, with January and June 2011 addendum opinions. 38 C.F.R. § 3.159(c) (4) (2012). The Board finds that the opinions obtained are adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the Veteran's representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, listed in 38 C.F.R. §3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Right Shoulder Disability The Veteran and his representative contend that the Veteran's right shoulder disability had its onset during service. In correspondence and testimony at a hearing at the RO in March 2008, the Veteran primarily asserted that service connection should be established because he was injured in a motor vehicle accident while working as a civilian for the United States Army. The Board has reviewed the evidence of record and finds that the Veteran had complaints of right shoulder disability during service in April 1966, from November 1967 until January 1968, and in January 1969. In this regard, it is noted that in April 1966 the Veteran complained of pain in the right shoulder after pulling on a rope the previous day. The assessment at that time was strain of the Latissimus Dorsi muscle. In November 1967, he complained of a possible dislocation of the right shoulder. X-ray studies were noted to be "OK." The impression was traumatic bursitis and contusion of the right shoulder. The Veteran continued to receive treatment for possible tendonitis in December 1967 and January 1968. In January 1969, he was treated for a possible torn ligament in the right arm. At that time, it was reported that he had been in a fight one month earlier and had been having trouble with the right arm since that incident. Previous X-ray studies had been interpreted as negative. Examination showed no deformity or effusion and range of motion to be within normal limits. Tenderness over the AC joint was noted, but the ligament was believed to be intact. On examination for separation from active duty in 1973, clinical evaluation of the upper extremities was normal. The Board finds that the Veteran sustained an intercurrent injury of the right shoulder in a June 1987 motor vehicle accident. While the Veteran was riding in a military vehicle at the time of the accident, the record shows that he was not performing active duty, active duty for training or inactive duty training at the time of the accident, but was working for the Department of the Army as a civilian. Private treatment records show that the Veteran underwent surgery for post-traumatic impingement syndrome. In November 2002, the Veteran underwent additional arthroscopic surgery for internal derangement of the right shoulder. The postoperative diagnosis was impingement with scarring, subacrominal space, right shoulder. On May 2010 VA examination, it was reported that the Veteran was involved in a motor vehicle accident while in a military vehicle at which time he sustained an injury of the right shoulder that ultimately resulted in the need for multiple surgical procedures. After examination and X-ray studies, the diagnoses were right shoulder postoperative arthroscopy/incision for rotator cuff injury and excision of the distal clavicle. The examiner initially stated that the Veteran's current right shoulder problems were related to the motor vehicle injury sustained while the Veteran was driving a military vehicle. The examiner submitted an addendum to this opinion in January 2011 wherein it was noted that the Veteran's initial history indicated that he was in the Army reserves at the time his right shoulder was injured in a motor vehicle accident, but that as the Veteran was not, in fact, on active duty at that time, the injuries were not service connected. Pursuant to the Board's May 2011 remand, the examiner issued a second addendum to the May 2010 VA examination report. That June 2011 addendum indicated that, the record showed that the Veteran had had multiple right shoulder injuries in 1966 and 1967, during service, in addition to the 1987 motor vehicle accident that did not occur during service. The examiner stated that it would be mere speculation to ascertain which injuries had caused the Veteran's current right shoulder problems. The Veteran had right shoulder injuries, both service-connected and non-service-connected that contributed to the current bilateral shoulder pain. The examiner was not able to determine and separate the contribution each of the injuries had made to the current right shoulder disorder without speculation. The Veteran had right shoulder injuries during service and after service in 1987. The record shows that he was working as a civilian in 1987 at the time of the motor vehicle accident and, while his contentions have centered on that accident as a cause of the current shoulder disability, questions were posed to the VA examiner regarding how much, if any, the complaints and injuries in service had contributed to the current symptoms. In the most recent addendum to the May 2010 examination report, the examiner stated that it is not possible to differentiate the Veteran's current right shoulder disability, now diagnosed as right shoulder postoperative arthroscopy for rotator cuff injury with excision of the distal clavicle, from service-connected disability noted while the Veteran was on active duty and disability from the non-service-connected motor vehicle accident in June 1987. This places the evidence in equipoise regarding the etiology of the Veteran's right shoulder disability. With the resolution of reasonable doubt, service connection for a right shoulder disability is warranted. Left Shoulder Disability The Veteran contends that service connection should be established for a left shoulder disability. The primary contention is that the Veteran's right shoulder disorder has caused the Veteran to overuse his left upper extremity so that service connection should be established for the left shoulder as secondary to the right. Review of the record shows that the Veteran had one complaint of left shoulder pain while on active duty in June 1972. In March 1997, he was shown to have degenerative joint disease of the left shoulder. An examination was conducted by VA in May 2010. At that time, it was reported that the Veteran had been overcompensating for his right shoulder. The diagnosis was moderate degenerative disease of the left AC joint. The examiner opined that it was at least as likely as not that the Veteran's left shoulder problems had resulted from aggravation over the years from repetitive overuse as necessitated from his original right shoulder injury. As the record contains a medical opinion that the degenerative joint disease of the Veteran's left shoulder is related to overuse syndrome necessitated by the service-connected right shoulder disability, secondary service connection is shown to be warranted. The Veteran's January 2006 claim predated the October 10, 2006, effective date for the requirement that a baseline level of severity of the nonservice-connected disability before the onset of aggravation be established. The Board will apply the prior version of the regulation. With the resolution of reasonable doubt, the claim is granted. ORDER Service connection for a right shoulder disability, post operative arthroscopy for rotator cuff injury with excision of the distal clavicle, is granted. Service connection for a left shoulder disability, moderate degenerative joint disease of the left AC joint, as secondary to a service-connected right shoulder disability, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs