Citation Nr: 1310872 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 05-19 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1957 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In April 2006, the Veteran provided testimony at a local hearing before a Decision Review Officer (DRO). The transcript is associated with the claims file. In January 2008, the Veteran testified at a hearing before a Veterans Law Judge. The Veterans Law Judge who presided over the hearing subsequently left employment with the Board and the Veteran was provided another hearing in March 2011 before a Veterans Law Judge. Again, the Veterans Law Judge who presided over the March 2011 hearing left employment with the Board. The Veteran requested another hearing and provided testimony at a video hearing in September 2013 before the undersigned Acting Veterans Law Judge. All hearing transcripts have been associated with the claims file. The Veteran's case was remanded in March 2008, August 2009, October 2010, and May 2011. The case has now been returned to the Board for review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Resolving the benefit of the doubt in favor of the Veteran, a right shoulder disability is related to an in-service injury. 2. Resolving the benefit of the doubt in favor of the Veteran, a left shoulder disability is related to an in-service injury. 3. Resolving the benefit of the doubt in favor of the Veteran, a right knee disability is related to an in-service injury. 4. Resolving the benefit of the doubt in favor of the Veteran, a left knee disability is related to an in-service injury. CONCLUSIONS OF LAW 1. A right shoulder disability, diagnosed as bursitis and degenerative joint disease, was incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. A left shoulder disability, diagnosed as degenerative joint disease and suspect tear, was incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. A right knee disability, diagnosed as degenerative joint disease, was incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 4. A left knee disability, diagnosed as degenerative joint disease, was incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the claims for service connection are being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence' in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In this case, the Veteran's service treatment records are not available. When a Veteran's service treatment records are unavailable, VA's duty to assist and the Board's duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule (see 38 U.S.C.A. §§ 71204(d)(1), 5107(b)) are heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The medical evidence shows that the Veteran has been diagnosed with mild degenerative changes of the knees, bursitis and degenerative joint disease of the right shoulder, and degenerative joint disease and suspect tear of the left shoulder. Although the service treatment records are unavailable in this case, the Veteran stated that he injured his shoulders and knees when parachuting during his period of active service. The Veteran's DD Form 214 shows that the Veteran received the Parachutist Badge. In addition, the Veteran submitted a lay statement from a fellow serviceman, J.S.C., who stated that he served with the Veteran during the summer of 1958 and that they were members of the 82nd Airborne Division, 505th Battalion, C Company, stationed at Fort Bragg, North Carolina. Sometime that summer, the 505th Battalion made a parachute drop at Fort Bragg during which many paratroopers were injured due to sudden wind gusts that developed during the drop. J.S.C. recalled the Veteran sustaining injuries to his shoulder and knees during the drop which required hospitalization and follow-up treatment that lasted for around six months. The Veteran's private physician, Dr. P. submitted a letter dated in August 2003 that explained that his medical records revealed that he treated the Veteran in 1970 for a recurring neck/shoulder pain and gave the Veteran a cortisone injection and a muscle relaxer. Dr. P. noted that the Veteran reported that this had been a recurring ailment for years. In several statements and in his hearing testimony, the Veteran has explained that he injured his shoulders and knees during a parachute jump during his period of active service. He also reported that he hurt his left shoulder on a different parachute jump and reinjured his right knee when kicking a football during service. He stated that he did play baseball after service, but that his career was cut short due to his shoulders and knees. A VA medical opinion was requested in April 2009. The examiner reviewed the claims file. The examiner was asked to provide an opinion as to whether it is at least as likely as not that any shoulder disorder or knee disorder began during service or is causally linked to any incident of service, to include injuries sustained during in-service parachute jumps. The examiner stated that he could not resolve the issue without resorting to mere speculation because the Veteran had some type of injury in service that was minor and baseball aggravated the injuries; bilateral shoulders and left knee. It was noted that the in-service injuries could not be substantiated because his medical records were destroyed. The examiner stated that he did play professional baseball for nine years. However, the Board notes that the injuries have been substantiated due to the unavailability of the service treatment records, the receipt of the Parachutist Badge and J.S.C.'s lay statement corroborating the Veteran's account of his injuries. A VA examination was provided in September 2009. The imaging studies showed degenerative changes of the knees and shoulders. The examiner opined that the present bilateral shoulder/knee disorder was not caused by or a result of military service and multiple jumps because the x-rays showed minimal changes in the bilateral knees and better than the majority of those in his age group who did not jump which is not what one sees in a condition that is supposed to be forty years old. In an addendum to the medical opinion dated in July 2011, it was noted that the magnetic resonance imaging (MRI) of the left shoulder dated in June 2010 showed a suspect tear of the posterior labrum and mild tendinopathy distal supraspinatus tendon with suspected tear. The MRI of the right shoulder revealed degenerative joint disease of the AC joint and bone marrow edema that may be from bone contusion from direct injury. The examiner opined that the bilateral shoulder conditions were not caused by or a result of bilateral shoulder strains in military service. It was noted that the bilateral strains in service occurred long enough in the past that the true effect on the shoulders should be showing if they were significant injuries. The MRIs showed better shoulders than the majority of people in the Veteran's age group with small if any changes in the cuffs and labrums and not nearly fifty year old problems since there are not the degenerative joint disease present that would be seen if from a 1957 series of injuries. In reviewing the evidence, the Board finds that the Veteran did in fact sustain injuries to his shoulders and knees during active service. There is nothing to refute the Veteran's assertions and J.S.C.'s lay statement corroborates the Veteran's account of his injuries sustained during a parachute jump. The Board finds it reasonable to believe that the Veteran sustained injuries to his knees and shoulders as a result of his duties as a parachutist during active service. In addition, the Veteran has reported symptoms related to his shoulders and knees since separation from active service. The Veteran's private physician, Dr. P., stated that he remembered treating the Veteran for shoulder problems in 1970, bolstering the credibility of the Veteran's statements regarding the onset of his bilateral shoulder and knee disabilities. Thus, the remaining question is the matter of etiology. The Board is aware that the evidence is limited with respect to nexus evidence. However, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise as to whether the Veteran's current disabilities of the shoulders and knees are related to his in-service injuries. The April 2009 VA examiner could not provide an opinion without resorting to speculation. However, in doing so, the examiner stated that the injuries were "minor" (although the Veteran reported that he was hospitalized) and that the injuries were aggravated by his post-service baseball career. Thus, in stating that the Veteran's in-service injuries were aggravated by his baseball career, does not rule out underlying disabilities from the Veteran's in-service injuries. The Board notes that the VA opinions dated in September 2009 and July 2011 provide negative nexus opinions, however, in weighing the evidence at hand, the Board finds that the medical evidence is in equipoise as to whether the Veteran's disabilities of the shoulders and knees are related to the in-service injuries. In sum, given the absence of the Veteran's service treatment records, the Veteran's statements and testimony regarding his injuries during parachute jumps, which is supported by his fellow serviceman's statement, his private doctor's statement, his receipt of the Parachutist Badge, the Board finds that the evidence is in equipoise as to whether the Veteran's right and left shoulder disabilities and right and left knee disabilities are related to the in-service injuries. Therefore, in resolving the benefit of the doubt in favor of the Veteran, service connection is warranted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a right shoulder disability, diagnosed as bursitis and degenerative joint disease, is granted. Entitlement to service connection for a left shoulder disability, diagnosed as degenerative joint disease and suspect tear, is granted. Entitlement to service connection for a right knee disability, diagnosed as degenerative joint disease, is granted. Entitlement to service connection for a left knee disability, diagnosed as degenerative joint disease, is granted. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs