Citation Nr: 1321448 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-31 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from January 1964 to January 1968 and from January 1991 to January 1992, with additional periods of reserve duty. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board remanded the Veteran's claim in February 2011. The Veteran was afforded a hearing before a Decision Review Officer at the RO in June 2009. In July 2010, he testified at a video conference hearing over which the undersigned Veterans Law Judge presided. FINDING OF FACT The evidence shows that the Veteran has had recurrent right shoulder problems since an in-service right shoulder injury. CONCLUSION OF LAW A right shoulder disability was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for right shoulder disability. As such, no discussion of VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Active Duty for Training (ACDUTRA) is defined as full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 01(22). Service connection may be granted for injury or disease incurred while on ACDUTRA. Inactive Duty Training (INACDUTRA) is defined as other than full-time training performed by Reserves. 38 U.S.C.A. § 101(23). Service connection may be granted for injuries incurred while on INACDUTRA, but not for disease. Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service Reports of Medical History dated in May 1976, February 1980, November 1983, and November 1987 reflect that the Veteran checked the "no" box for painful or "trick" shoulder or elbow. Reports of Medical Examinations dated in May 1976, February 1980, November 1983, and November 1987 reflect that the Veteran's upper extremities were clinically evaluated as normal. Service treatment records dated in September 1989 reflect that the Veteran was seen for an injury to his right shoulder which was sustained three days earlier. It was noted that the Veteran apparently pushed a very heavy object, lost his balance and fell, landing hard on his right shoulder. He felt something pop but wasn't sure what it was. X-ray findings revealed no calcification about the shoulder, and there was no evidence of fracture. There were degenerative changes in the acromioclavicular joint. The examiner felt the Veteran sustained a contusion of the rotator cuff. In October 1989, the Veteran was assessed with a rotator cuff strain. In December 1989, it was noted that the shoulder was back to normal, he had full range of motion, and he could return to full duty. A January 1990 treatment record reflects that the Veteran developed right shoulder pain when pushing a tank during service. Symptoms of pain and numbness persisted intermittently. A January 1991 Line of Duty Determination reflects that the Veteran had right shoulder pain intermittently for one and a half years, which was aggravated two weeks earlier by certain positions such as working overhead and pulling hard which caused sharp pain from shoulders to neck. An undated service record reflect that the Veteran had sharp pain coming from his right upper extremity in January 1991. The Veteran indicated that, while lifting a nitrogen hose over his head and right shoulder, he slipped and fell on the ramp which was wet and slippery that day. In February 1991, the Veteran stated that his shoulder was feeling worse. In June 1991, the Veteran continued to have right shoulder pain. A December 1991 treatment record reflects that the Veteran originally injured his right shoulder in 1989, which the examiner indicated must have been some sort of rotator cuff injury which cleared up. A service Report of Medical History dated in January 1992 reflects that the Veteran checked the "no" box for painful or "trick" shoulder or elbow. No right shoulder problems were noted on a January 1992 Report of Medical Examination. The Veteran underwent a VA examination in May 1992. He reported injuring his right shoulder in 1989 while moving a drum of ethalene glycol. He stated that he had chronic pain after this. Upon physical examination, pain radiated into the right shoulder with both compression and distraction of the neck. VA treatment records dated in June 1993 reflect that the Veteran complained of pain in the right shoulder. Private treatment records dated in October 1996 reflect that the Veteran was diagnosed with a right shoulder injury. VA treatment records dated in December 1996 and March 2000 reflect that the Veteran complained of right shoulder pain. Private treatment records dated in June 2008 reflect that the Veteran was assessed with a shoulder joint disorder, possible persistent right rotator tear. He stated that he felt pain in the right shoulder two days earlier, after he tried to start the rototiller. Private treatment records from Dr. Maletz dated in August 2008 reflect that the Veteran had massive rotator cuff weakness, severe pain over distal clavicle, problems with forward flexion and abduction given severe pain of a bone on bone quality. Surgery was recommended. The Veteran had another VA examination in January 2009. He reported that he initially injured his right shoulder in 1991 when he slipped while refueling a C5A. He stated that he injured the right shoulder in June 2008 after he tried to start the rototiller. He reported that the pain persisted after treatment and an MRI revealed a massive rotator cuff tear. He stated that he had surgery in September 2008. Following physical examination, the examiner diagnosed right rotator cuff/right shoulder tendonitis. The examiner noted that the Veteran injured the right rotator cuff around 1989, and the symptoms resolved. The examiner stated that the Veteran injured his neck with radicular symptoms in the right upper extremity in 1991. The examiner opined that the June 2008 right shoulder injury after trying to start the rototiller is less likely than not related to the initial injury to the right shoulder in 1989. The Veteran testified at the July 2010 Board hearing that he had continuous right shoulder symptoms since his September 1989 right shoulder injury during Reserve training. Following the hearing, he submitted lay statements from his spouse and a co-worker in July 2010. The Veteran's co-worker stated that he has known the Veteran for over 20 years and that the Veteran has had shoulder pain for as long as he has known him. The Veteran's spouse stated that the Veteran has had shoulder pain since she met the Veteran in 1992. The Veteran had another VA examination in April 2011. He reported injuring his neck in 1991. Following physical examination, the examiner diagnosed right shoulder rotator cuff sprain, likely resolved. The examiner also diagnosed right shoulder full thickness supraspinatus and infraspinatus tears with retraction and atrophy with associated right arm/shoulder weakness. The examiner noted that the Veteran had an initial right shoulder injury in 1989 and was returned to full duty. The examiner stated that the Veteran reported that he always had pain in the shoulder following this incident, but there was no documentation of this in the medical records or personal statements provided on behalf of the Veteran. The examiner noted that the Veteran's spouse met him following the 1991 incident and was not able to comment on the pain for the 1989 to 1991 time period. The examiner noted that the Veteran's buddy statement was not specific regarding when he noted the Veteran's pain. The examiner opined that the evidence suggests that it is more likely that the Veteran's original rotator cuff sprain/contusion resolved and he was able to return to full duty with full range of motion as noted in the December 1989 note. The examiner noted that the Veteran sustained a second injury following a fall onto his neck in 1991, and that the symptoms and treatment notes do not suggest a separate shoulder joint condition. The examiner noted that the Veteran sustained a serious injury to his right rotator cuff in 2008 as a civilian. The examiner stated that this injury resulted in a tear to the rotator cuff which required surgical intervention and has shown evidence of a re-tear. As a result, the examiner noted that the Veteran has moderate functional impairment at the shoulder which is additionally limited by the prior cervical spine degenerative disc disease and neuropathy; however there is nothing to suggest these are causally related. The resolution of this appeal turns on the credibility of the Veteran's account that he has had recurrent right shoulder problems since 1989, notwithstanding the recent rototiller injury. In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court, citing its earlier decisions in Swann v. Brown, 5 Vet. App. 229 (1993) and Reonal v. Brown, 5 Vet. App. 458 (1993), reaffirmed that, in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or that are contradicted by other facts of record. Id. at 179. In Kowalski, however, the Court declared that the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history provided by the Veteran, and instead must evaluate the credibility and weight of the history upon which the opinion is predicated. Id. In Coburn v. Nicholson, 19 Vet. App. 427 (2006), the Court, citing Kowalski, as well as Swann and Reonal, emphasized that the Board may not disregard a medical opinion solely on the rationale that the medical opinion is based on a history provided by the Veteran. Id. at 432-33. Because it is clear the Veteran experienced a right shoulder injury in service, and given that the Board finds that the lay accounts of the Veteran's recurrent right shoulder problems since 1989 are both competent and credible, notwithstanding the impression offered by the April 2011 VA examiner, the Board finds that the evidence supports service connection for residuals of a right shoulder injury. In reaching this conclusion, the Board finds that the April 2011 VA examiner's opinion is of limited probative value because it is predicated on the resolution of right shoulder problems prior to the rototiller injury, which the Board finds is not an accurate factual predicate. As such, the Board concludes that his current right shoulder disability cannot be disassociated from the original 1989 right shoulder injury. Accordingly, the claim for service connection for right shoulder disability is warranted. ORDER Service connection for a right shoulder disability is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs