Citation Nr: 1311504	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO.  10-07 132	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for a right shoulder disability, to include degenerative joint disease of the right shoulder.  


WITNESSES AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

E. Joyner, Counsel






INTRODUCTION

The Veteran served on active duty from April 1981 to April 2001.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.  

In December 2012 the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing.  A transcript of that hearing is of record.

The Board notes that the Veteran filed a claim for compensation under 38 U.S.C.A. § 1151 for additional right shoulder disability due to surgery performed at a VA Medical Center.  In a July 2012 rating decision, the claim was denied.  Although the Veteran submitted a timely notice of disagreement and a statement of the case was issued in November 2012, the Veteran did not file a timely substantive appeal with respect to this issue and it has not been certified to the Board for appellate consideration.  As such, it is not currently before the Board.  See 38 C.F.R. § 20.200 (2012) (an appeal consists of a timely filed notice of disagreement in writing and after a statement of the case has been furnished, a timely filed substantive appeal.)

The Board also notes that although the Veteran filed a timely substantive appeal in April 2004 regarding his claims for increased ratings for lumbar strain, traumatic arthritis of the left foot, and a left thumb disability, in a September 2004 statement, prior to the issues being certified to the Board, the Veteran indicated that he was satisfied with his disability ratings for these three disabilities, and he wished to withdraw his appeal.  Therefore, these issues are not currently on appeal.


FINDING OF FACT

It is at least as likely as not that the Veteran has a right shoulder disability that began in service and has continued to the present.


CONCLUSION OF LAW

The criteria for service connection for a right shoulder disability have been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for a right shoulder disability, which constitutes a complete grant of the Veteran's claim.  Therefore, no discussion of VA's duty to notify or assist is necessary.

Legal Analysis

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 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 injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As previously noted, arthritis is recognized as a chronic disability in 38 C.F.R. § 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits.  In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent."  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which 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).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54. 

In this case, the Veteran contends that he is entitled to service connection for a right shoulder disability, to include degenerative joint disease of the right shoulder, because it was incurred during service.  Specifically, he maintains that during service, he was in aircraft structural maintenance for 20 years, and his duties in this capacity, namely shooting and bucking rivets, carrying aircraft parts, and reaching while working on aircraft, caused right shoulder damage.  He also indicated that he fell off of a B-4 stand, which was 8 to 10 feet tall, and injured his right shoulder.  Finally, he stated that he fell off of a five step stand while working on an F-22 aircraft in 2000.

The Veteran's service treatment records include a February 1985 physical profile serial report, which notes that the Veteran was not to perform any duty requiring use of the right arm.  A September 1990 service treatment record notes that the Veteran had right shoulder complaints for a year.  He indicated that he feels like there is a grinding in the shoulder.  The assessment was bursitis and cuff tendonitis.  Another September 1990 service treatment record notes that the Veteran's right shoulder had not improved.  An October 1990 service treatment record reflects cuff tendonitis/bursitis unresolved, right shoulder.  The service treatment records also include an October 1990 service treatment record which notes that the Veteran was seen for a follow-up for his right shoulder.  The assessment was right shoulder tendonitis.  An October 1990 X-ray study of the right shoulder revealed old healed clavicular fracture with increased distance between the coracoid process and the clavicle, which may represent some disruption of the coracoclavicular ligament.  No other abnormalities were found.  A November 1990 service treatment record notes that the Veteran was seen for a follow up for the right shoulder.  The diagnosis was right biceps tendonitis.  

A December 2008 VA examination report notes that the Veteran first experienced right shoulder pain in 1985.  He fell while working on a B-52 bomber plane, hitting his right shoulder directly on the ground.  He was seen by a medical provider and was told that there were no fractures seen.  Since that time, he had continued pain on the right shoulder and was given pain medications.  In 1993 he received a joint injection on the right shoulder.  This offered some relief.  However, over the years, he noted recurrence of this right shoulder pain, and it has worsened, causing limited range of motion.  It was noted that he currently takes morphine sulfate three times a day and oxycodone three to four times a day as needed.  The examiner noted that the claims file was reviewed.  The examiner opined that the chronic shoulder disability is less likely as not caused by or a result of subacromial bursitis/tendonitis in service.  The examiner reasoned that no records show that the Veteran continued to have problems with his right shoulder after he left the military.  The examiner stated that this condition may be asymptomatic at this time although he had significant arthritic changes seen on his X-rays.  The examiner stated that in most cases, radiological findings of arthritis do not correlate with symptoms.  Continued pain symptoms aggravated with activity lead a patient to seek active treatment.  The examiner stated that it is difficult to ascertain whether the Veteran's current complaints of shoulder pain are due to complaints of tendonitis during service because the service treatment records show that he had physical therapy treatments but they do not show continued symptoms or treatments thereafter.  

A February 2009 VA treatment record notes that the Veteran was seen for complaints of right shoulder pain.  He indicated that he had problems with his shoulder in the 1980s and had an injection, which gave him relief until it recurred.  

A May 2009 X-ray study of the right shoulder revealed degenerative changes of the shoulders.

A January 2010 VA treatment record notes that the Veteran had a MRI of the right shoulder in October 2009.  It revealed full thickness retracted rotator cuff tear, right shoulder.  

In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a right shoulder disability.  The Veteran's service treatment records show that he was treated for right shoulder problems, including tendonitis and bursitis, on a few occasions during service.  Additionally, post-service medical records show treatment for degenerative joint disease of the right shoulder and rotator cuff tear since service.  Moreover, the Veteran is competent to report symptoms such as similar ongoing shoulder pain.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  There is no contrary evidence and no reason to question the Veteran's credibility.  Therefore, the Board finds that the Veteran experienced chronic symptoms of a right shoulder disability during service and ever since.  See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). 

The Board acknowledges that the December 2008 VA examiner opined that the Veteran's chronic shoulder disability is less likely as not caused by or a result of subacromial bursitis/tendonitis in service.  However, the examiner does not appear to have factored into his opinion the Veteran's complaints of continuity of symptomatology since service and the examiner did not address the in-service October 1990 X-ray study of the right shoulder showing possible disruption of the coracoclavicular ligament.  Additionally, the examiner stated that it was difficult to ascertain whether the current shoulder complaints are due to tendonitis in service in part because there were no records of the Veteran's continued right shoulder problems after service.  In this regard, the Board notes that the absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim);

The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated.  See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Accordingly, the Board concludes that the December 2008 VA medical opinion is of limited probative value and is not sufficient to raise a reasonable doubt.

In sum, the Board finds that because the Veteran is competent to report right shoulder symptoms in service, continuous right shoulder symptomatology since service, and current symptoms that form the basis for diagnosis of disability, such evidence tends to relate the Veteran's currently diagnosed degenerative joint disease of the right shoulder to his period of service.  See Davidson, 581 F.3d at 1316 (holding that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis).  Moreover, the Board finds that the Veteran's account is credible.  

Therefore, the Board finds that the evidence of record establishes that the Veteran had a right shoulder disability during active service and that Veteran has presented credible and competent statements regarding continuity of symptomatology since service for his right shoulder disability.  Resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for a right shoulder disability is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b) (2012).


ORDER

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



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs