Citation Nr: 1318907 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-48 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for left shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to November 1969. This appeal to the Board of Veterans' Appeals (Board) arises from a February 2009 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans' Affairs (VA). The case is now under the jurisdiction of the Winston-Salem, North Carolina RO. In December 2012, a Board hearing was held at the Winston-Salem RO before the undersigned Veteran's Law Judge. A transcript of the hearing is of record. FINDING OF FACT The Veteran's posttraumatic arthritis of the left shoulder and acromioclavicular (AC) joint is the result of a dislocation of the shoulder during service. CONCLUSION OF LAW The criteria for entitlement to service connection for left shoulder disability are met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). As the Board has granted the full benefit sought, there is no prejudice to the Veteran under VA's duties to notify and assist. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran seeks service connection for left shoulder disability, alleging that he dislocated the shoulder in service and that the disorder has continued since service. 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 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 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, a medical opinion was not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran had extensive combat duty in Vietnam as a forward artillery observer with the Marine Corps. During the December 2012 Board hearing, he testified that in March 1967 he was at the Gio Linh firebase when it was subjected to an artillery attack. One of the rounds landed approximately 15 feet behind him. Due to the force of the explosion, he was slammed into a beam, resulting in the dislocation of his left shoulder. He alleges that as base medical personnel had to attend to more seriously injured soldiers, a corpsman simply popped the Veteran's shoulder back in place, told him to put a sling on it and gave him some pain medication (Darvon). The Veteran subsequently put a sling on the shoulder and kept it on for a couple of weeks, along with taking the Darvon for the pain. The shoulder continued to bother him to some extent during the remainder of his service but as he spent so much of his active duty time in Vietnam and as he was used to tolerating pain, he did not receive any further medical treatment for it. The Veteran alleges that the shoulder continued to bother him, however. VA medical records do show more recent treatment and evaluation for left shoulder problems. During an August 2002 VA primary care visit, the Veteran reported ongoing left shoulder pain related to a dislocation occurring 10 years previously. During a subsequent February 2003 primary care visit, he reported ongoing left shoulder pain since the dislocation in service. Also, a December 2007 fee basis left shoulder X-ray showed degenerative changes in the glenohumeral joint and spurring on the inferior acromion. Additionally, during a January 2008 VA orthopedic surgery consultation, a VA physician's assistant diagnosed the Veteran with mild post-traumatic arthritis of the left shoulder and AC joint, status post history of closed dislocation in Vietnam in 1967. The physician's assistant commented that the osteoarthritis was most likely post-traumatic in nature, related to the old dislocation. The Veteran has a current left shoulder disability, post-traumatic arthritis of the left shoulder and AC joint. Also, as the Veteran's described left shoulder injury is consistent with his combat service, the fact of the incident in question is presumed to have occurred. See 38 U.S.C.A. § 1154(b). Additionally, he has competently and credibly testified that the shoulder continued to bother him after the injury. See Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, the January 2008 VA physician's assistant specifically found that the Veteran's current osteoarthritis was most likely post-traumatic in nature, related to the dislocation in service and there is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the left shoulder osteoarthritis is not service-related). The Veteran's reports of the history of his shoulder injury contained in the earlier VA treatment records appear potentially inconsistent as he initially reported in August 2002 a shoulder dislocation occurring ten years previously but subsequently reported in February 2003 the dislocation occurring in service. However, that the dislocation approximately 10 years before August 2002 may have been a reinjury. Consequently, resolving reasonable doubt concerning this potential inconsistency in the Veteran's favor, a current left shoulder disability, a left shoulder injury in service and a nexus between the in-service injury and the current disability have all been established. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. Accordingly, service connection for left shoulder disability is granted. 38 C.F.R. § 3.303; Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004). ORDER Service connection for left shoulder disability is granted subject to the regulations governing the payment of monetary awards. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs