Citation Nr: 1322172 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 12-15 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right elbow disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION Please note 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). The Veteran served on active duty from September 1957 to September 1959. This matter comes before the Board from a January 2010 rating by the RO in Des Moines, Iowa, which denied service connection for the claimed disorders of the right shoulder and right arm. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, osteoarthritis and superior glenoid lesion had their clinical onset in service. 2. Resolving all doubt in the Veteran's favor, osteoarthritis and calcific tendonitis of the right elbow had their clinical onset in service. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, osteoarthritis and superior glenoid lesion of the right shoulder were incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Resolving all doubt in the Veteran's favor, osteoarthritis and calcific tendonitis of the right elbow were incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for disorders of the right upper extremity specifically claimed as disorders affecting the right shoulder, right forearm and right elbow, including arthritis and bone fragments. The Board concludes that the VCAA does not preclude the Board from adjudicating this portion of the Veteran's claim. This is so because the Board is taking action favorable to the Veteran by granting his service connection claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the fact the Board allows the benefit sought on appeal, discussion of VA's compliance with the notice and assistance requirements of the VCAA, 38 U.S.C.A. § 5100 et seq. (West 2002 and Supp. 2012), would serve no useful purpose. The Veteran contends he is entitled to service connections for disorders of the right upper extremity specifically claimed as disorders affecting the right shoulder, right forearm and right elbow, including arthritis and bone fragments. He specifically alleges that he injured his right shoulder and forearm/elbow while playing baseball in the service, and has alleged continued symptoms and treatment for the right upper extremity. Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection for a "chronic disease," such as arthritis, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." In a recent decision from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Walker v. Shinseki, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus"). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person 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 lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran 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 has provided lay statements in support of his claim, including a detailed statement attached to his June 2012 substantive appeal, in which he alleges that after he was injured in service, he received medical treatment for chronic bursitis and pain in his entire right arm after service. He denied having pain in his right arm prior to pitching for the Army baseball team, and indicated that while he did play baseball after service, the injury residuals to the right arm, (including the shoulder and elbow) prevented him from playing professional baseball, and he had to eventually give up playing baseball after service. He acknowledged that he also had to work at manual labor and conceded that these post service activities likely worsened his right arm and shoulder disorders, but firmly alleged that the disorders began in service. He described current problems of pain and very little mobility in his shoulder and elbow joints. He also has submitted lay statements from family members indicating that after service he had problems with his pitching arm (right arm) after service, and that he was unable to continue a career as a professional baseball pitcher after service. Service treatment records are unavailable, having been destroyed in a fire in 1973. Their unavailability was confirmed by a Formal Finding of Unavailability dated in December 2009, which detailed the attempts to obtain them from the National Personnel Records Center (NPRC). An additional attempt to obtain treatment records from Oak Knoll Navy Hospital from November to December 1958 also confirmed that these records are unavailable pursuant to a Formal Finding of Unavailability dated in December 2012. The Veteran was notified of the unavailability of his service treatment records in a December 2008 letter and again in a December 2009 letter, which also advised him of alternate evidence to send in support of his claim, including lay evidence. In support of his claim, the Veteran has submitted lay evidence, which includes a photocopy of a baseball team photo, which he claims depicts him on an Army baseball team. In addition to these photos, the Veteran submitted photocopies of letters that he wrote home to his family while in the service. These letters include an undated letter in which he described having pitched in a game and his arm got sore. A letter that the Veteran has indicated was dated in August 1958, in which he reported having a sore arm but was encouraged by an individual who he now identifies as the athletic director of the Presidio to make a trip and play with the sore arm. This letter also described that he had received a letter from an individual he identifies as a representative of the San Francisco Giants organization who had expressed a desire in his signing a contract for the 1959 season upon his release from service. He also enclosed a copy of a letter from individuals in the Giants Association indicating that they had purchased a contract with the Veteran as a pitcher but that he was presently in the service. Other letters from later in 1958 indicate that he continued to have issues with his right arm, with a September 1958 letter indicating that he was still having problems with his shoulder and was not able to work out with the Giants. In letters from October and November 1958, he reported treating the arm with rest and hot packs. In December 1958 he wrote home, reporting that he was receiving ultrasound treatment on his arm, which was a new treatment of the muscles, and he also indicated his arm was X-rayed but he did not know the results. He also expressed a desire to be seen by his private doctor, Dr. Cramer, when he came home on leave. The Veteran has reported that after service, he sought treatment from Dr. Cramer, but indicated the records from this doctor are unavailable as he died in 1975. He enclosed articles confirming the death of Dr. Cramer in 1975, with the articles also describing him as both an osteopath and athletic trainer. The Veteran's brother in a May 2009 lay statement also described the Veteran as having treated with a Dr. Durbansky in Des Moines Iowa for bone chips and calcium deposits. The Veteran submitted evidence regarding this doctor, including an e-mail from June 2012 confirming that Dr. Durbansky had served at the Mercy Medical Center in Des Moines from August 1954 through June 1995. An obituary indicates that this doctor also worked in his own practice, Iowa Orthopedics from 1947 to 1995. Further correspondence in January 2009 confirms that records from this practice are not available. The Veteran submitted a January 2010 private orthopedic evaluation which included X-rays of his right shoulder and elbow. The Veteran's history included his reports of having injured his right elbow and shoulder in the 1950's around 1958 or 1959, while pitching for a military baseball team. The old records were noted to no longer be around. He was noted to continue having pain in his right shoulder and elbow and limitation of activities and movement. He denied a history of surgery. Examination was noted to show some mild crepitus of the right shoulder, with active motion shown to be 150, 130, and 25 degrees of external rotation with the arm at the side and 70 with the arm abducted. He was noted to lack 30 to 35 degrees of extension of the elbow, with other motions shown to be 110 degrees flexion, 50 degrees pronation and 60 degrees supination. X-rays were noted to show fairly advanced glenohumeral arthritic changes of the right shoulder and significant degenerative changes of the right elbow throughout the entire elbow joint. The impression was of a 75 year old with advanced glenohumeral joint arthritis right shoulder and advanced right elbow arthritis with significant flexion contracture. The orthopedist opined that both of these conditions were consistent with arthritic changes and neither appeared acute. This was a chronic situation. The orthopedist noted that the Veteran related these to some injuries to his shoulder and elbow in the 1950's while playing baseball for the military. However no opinion as to the etiology of these conditions was given by the orthopedist. Online evidence from baseballreference.com indicates that a person with the Veteran's name played in minor league baseball as a pitcher from 1953-1957 and from 1960-1961, which would fall in the years prior to and after his service. Additionally the Veteran has submitted a copy of an article indicating that he played baseball along with other members of his family in the early 1960's. Private treatment records from 2010 to 2011 mostly address other medical problems besides the claimed disorders of the right upper extremity. However a January 2010 record noted findings for the right arm indicating that he could not straighten it, and also indicated that it originally happened in 1958. He was noted to have played pro ball and Army baseball and had numbness in his hand. Restricted motion of the shoulder and elbow was noted. A later January 2010 record treating left leg swelling later diagnosed as DVT, with a history of having pushed a heavy object and felt strain and pain. His medical history included joint pain. The report of a January 2012 VA examination for the right upper extremity to include the shoulder and elbow, documented the pertinent history of the Veteran having played baseball professionally beginning in 1953 out of high school until he was drafted into the service. He reported in service that he pitched 2 seasons in the service for the team at the Presidio in San Francisco. He also indicated that he only pitched one day of batting practice for the San Francisco Giants. He reported that after service he returned to the professional team in Dallas but only played 1 to 1 1/2 seasons before he was let go due to the right arm hurting. He indicated that he played 3-4 seasons of semi pro ball but only relief pitched a few innings, and mostly played first base. He also spent 20 years working construction, mainly brick and block laying and retired at age 62. Regarding the right shoulder disorder, the diagnoses included osteoarthritis (OA) and superior glenoid labrum lesion (SLAP). The history of the shoulder was of injuring it when pitching for a baseball team in service. He described the injury as sharp pain lasting a couple weeks, which gradually settled down. However this would intensify with continued pitching. After service the pain waxed and waned based on activities. The repetitive activities of pitching caused more pain. He claimed that carrying done at his construction job did not bother it. He described constant aching of a moderate 5-6 level with no significant increases unless he threw a ball. Examination revealed limited motion, but no further limitation on repetitive motion. His muscle strength was normal 5/5. Testing for signs of rotator cuff pathology such as tendonopathy or tear were positive, including Hawkins and empty can (in fact he was unable to do empty can). He was also unable to perform a lift off subcapsularis test, with weakness in such testing suggestive of subscapularis tendonopathy or tear. Shoulder instability was also suggested by a positive crank apprehension and relocation test. Other noteworthy findings included moderate tenderness on palpation of the right glenohumeral joint line and right shoulder acromioclavicular (AC) joint. X-rays showed evidence of degenerative changes as well as cystic changes in the humeral head, apparent bony growth rising from the glenoid and apparent hypertrophied AC joint. Regarding the right elbow/forearm, the diagnosis was OA and calcific tendonitis. The history of onset was in service with gradual worsening over the years. He denied any frank injury but indicated that the pain eventually got worse than the right shoulder and the elbow would lock up at times. He described that he was first evaluated for this problem in the early 1960's at Mercy Medical Center. He continued to note pain in the elbow mostly at night, and occasional locking which he was able to correct. The pain was generally at a 5-6 level. He denied any history of surgery. Physical examination was significant for limited motion, particularly at flexion and extension, unchanged on repetitive use testing. His strength was 5/5. He was noted to have evidence of arthritis on X-ray. He had tenderness to palpation of the right elbow antecubital and right elbow just proximal to the olecranon. It was concluded that the Veteran had advanced OA of the right shoulder and right elbow, with evidence of calcific tendonitis of the elbow area. This was evidenced by the ill defined calcifications present in the antecubital space and along the humeral ulnar joint. Also present was evidence of a SLAP lesion of the right shoulder by a mildly positive clunk test. All of these conditions were found due to the combined effects of working as a high school baseball player for 4 years, working as a professional baseball pitcher for 5 years prior to service, 2 seasons pitching for a base level baseball team during service and 3-4 more seasons playing semi professional baseball after service. In particular the evidence of a SLAP lesion of the right shoulder was clearly the result of a pitching related injury some time during the total 15-16 years in which he was an active participant in organized baseball. He was found to be a credible historian in his reporting of the injury while doing some training in service, although the examiner could not confirm this fully due to lack of records. Regarding the calcific tendonitis of the right elbow, this also was consistent with baseball, specifically improper throwing technique when throwing a curve ball as a pitcher. Again it was the combined effects of 15-16 years total participation in organized baseball. The Veteran reported no specific injury to the elbow in service but rather a gradual onset of symptoms beginning after 10-11 years of pitching, to include high school, professional and military service. The symptoms continued to worsen with his continued attempts to try pitching after service. This was a cumulative trauma type condition. Regarding the OA of both the right shoulder and right elbow, this also was due to the combined effects of his entire lifetime of playing baseball at various levels of competition, as well as working manual labor in construction, and also from age related changes. The examiner stated that based on the limited records available it was not possible to determine whether the Veteran's current right shoulder and elbow disorders are related to events during service without resorting to mere speculation. A private record dated in January 2012 confirmed that measurements of the ranges of motion of the Veteran's right shoulder and right elbow continued to show limited motion, as well as painful motion. No discussion of the nature and etiology of his shoulder and elbow disorders was mentioned. An undated letter from a chiropractor described the Veteran as having been diagnosed with calcific bursitis in service and stating that chronic bursitis can lead to calcific bursitis over time. This opinion said that his limited range of motion was related to this diagnosis of bursitis. The Veteran also submitted articles discussing the symptoms and progression of bursitis in support of his claim. Based on a review of the foregoing and affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted for the claimed disorders of the right shoulder and right elbow. While service treatment records are unavailable in this matter, the Veteran has supplied credible evidence via the copies of his letters home from service, that showed he was having issues with his right arm after pitching during the service in 1958, and that he sought medical treatment for his right arm and shoulder during service in 1958. Other evidence, including that of lay witnesses and the online information obtained from baseballreference.com regarding the minor league history of an individual with the Veteran's name supports his history of playing baseball before, during and after service, and tend to support his contentions of problems continuing his baseball career after developing right arm problems during the service. There is no evidence that tends to contradict his story. The Veteran's written lay statements are found to be credible and to the extent that they describe his experiencing right upper extremity problems in service and of having sought treatment after service, such statements describe symptoms at the time that supports a later diagnosis by a medical professional. See Jandreau, supra, see also Barr, supra. Regarding the medical nexus linking the current right upper extremity disabilities of the shoulder and forearm/elbow to service, while there is not available medical evidence to document the inservice injury, or treatment shortly thereafter service due to such records being unavailable, the Board lends weight to the findings from the examiner in the January 2012 VA examination regarding the cause of his right shoulder and elbow disorders, following examination and review of the claims file. This examiner has determined that the current disabilities of the Veteran's right shoulder and right elbow are the cumulative result of his participations in baseball, to include his participation during active service. There is not medical evidence that contradicts this opinion. Thus this opinion, coupled with the lay evidence of right arm problems hampering his ability to play baseball during service, suggests that the current disabilities of the right shoulder and elbow are as likely as not at least in part due to such participation playing baseball in service. The evidence is in equipoise on the question of whether such disabilities began in service. The Board concludes that there is a reasonable doubt as to whether the Veteran's current disability is causally related to his military service. To the extent that there is reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for right upper extremity disabilities of osteoarthritis and superior glenoid lesion claimed as right shoulder condition and osteoarthritis and calcific tendonitis of the right elbow is warranted. ORDER Service connection for osteoarthritis and superior glenoid lesion of the right shoulder condition is granted. Service connection for osteoarthritis and calcific tendonitis of the right elbow is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs