Citation Nr: 1326221 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-02 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the right shoulder. 2. Entitlement to service connection for degenerative joint disease of the left shoulder. 3. Entitlement to service connection for degenerative joint disease of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1984 to May 1987 and from February 2003 to May 2004. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from the May 2008 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the issues currently on appeal. In March 2012, the Veteran testified at a hearing before a decision review officer (DRO) at the RO. A hearing transcript has been added to the record. Subsequent to the issuance of the April 2012 statement of the case, the Veteran submitted additional evidence in March 2013. In a brief submitted in June 2013, the Veteran's representative waived initial RO consideration of the newly submitted evidence. Therefore, the appeal may proceed. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant). FINDINGS OF FACT 1. The Veteran has currently diagnosed of degenerative joint disease (DJD) of the right shoulder, left shoulder, and cervical spine. 2. Symptoms relating to DJD of the left and right shoulder manifested within one year after the date of separation. 3. The evidence is in equipoise as to whether DJD of the cervical spine is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for DJD of the right shoulder have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for service connection for DJD of the left shoulder have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for DJD of the cervical spine have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The claims of service connection for DJD of the right shoulder, left shoulder, and cervical spine have been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (grant of service connection), no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations 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. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). The Board finds that DJD (arthritis) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the Board will apply 38 C.F.R. § 3.303(b) to all claims on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as DJD (arthritis), becomes manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. See 3.307(c). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Service Connection for DJD of the Right and Left Shoulder The Veteran contends that he has experienced bilateral shoulder pain in service and since service separation. Specifically, during the March 2012 DRO hearing, the Veteran stated that the military equipment, vehicles, and armor used during service caused his bilateral shoulder disabilities. He reported that the flak jacket came up in such a way that it blocked the helmet so that he was constantly fighting to hold his head up in order to see out of the military vehicles. Upon review of all the evidence of record, both lay and medical, the Board finds that DJD of the Veteran's right and left shoulder was manifested within one year after the date of separation from service (i.e., May 2004). Although service treatment records are absent for any complaints, treatment, or diagnosis of DJD of the shoulders, post-service VA treatment records reflect that the Veteran first complained of right shoulder pain as early as November 2004, only six months after service separation. Complaints and treatment for left shoulder pain were first reported in February 2005, nine months after service separation. Specifically, in a November 2004 VA treatment record, the Veteran complained of worsening pain in his joints, including his right shoulder. In a February 2005 VA treatment note, dated within one year from service separation in May 2004, the Veteran reported left shoulder pain with limited range of motion. In a subsequent February 2005 VA treatment note, the VA medical physician noted an impression of DJD of the left shoulder. In a May 2005 VA treatment note, the Veteran again reported left shoulder pain for over a year. The VA physician found decreased range of motion and noted that a past VA physician felt that his condition was secondary to DJD. In a September 2005 VA treatment note, the Veteran credibly reported that during active service his joints ached due to wearing heavy personal equipment and being in humvees for long periods of time. The Veteran stated that he experienced pain in both shoulders in service and since service separation. In a June 2006 VA knee examination report, the Veteran stated that he experienced joint pain during service in his hips, shoulders, and knees. Further, the Veteran also reported the onset of joint pain in November 2003 and that he had joint pain for over three years. Thereafter, in a September 2007 VA treatment note, the Veteran was diagnosed with DJD of the right shoulder. DJD of the left shoulder was diagnosed in the March 2012 VA examination report. Although the Board acknowledges that diagnoses for DJD of the Veteran's shoulders came years after service separation, the Board finds that the evidence discussed above demonstrates that the Veteran manifested symptoms of DJD in both shoulders within one year of service separation in May 2004. While the March 2012 VA examination report includes an opinion that the current shoulder disorder is not related to service because there was no evidence on an inservice injury, the opinion is of limited probative value because it does not address the evidence related to the presence of symptoms of DJD within one year of separation from service. Pursuant to 38 C.F.R. § 3.307(c), even if a disease is not diagnosed during the presumptive period, a veteran can still receive presumptive service connection by showing, through acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree during the presumptive period, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but, in light of subsequent developments, it may gain considerable significance. For these reasons, the Board finds that the weight of the lay and medical evidence of record demonstrates that characteristic manifestations of DJD of the right and left shoulder were present within one year of service separation followed by definite diagnoses in 2007 and 2012. Further, the Veteran has consistently reported that his bilateral shoulder pain and limited range of motion existed in service and continued after service separation. Accordingly, service connection DJD of the right and left shoulder is granted. Service Connection for DJD of the Cervical Spine As for the Veteran's claim for service connection for DJD of the cervical spine, the Board finds that it was not chronic in service and was not manifested within one year after the date of separation from service. In this regard, service treatment records are absent for complaints, treatment, or diagnosis of neck pain or DJD of the cervical spine. Further, the Veteran was first diagnosed with DJD of the cervical spine in September 2007, three years after service separation. Unlike his continuous reports of pain in the shoulders beginning soon after service separation, as discussed in detail in the previous section, the Veteran specifically denied neck pain in a May 2004 VA treatment record. Similarly, during the June 2006 VA knee examination, the Veteran reported in-service hip, shoulder, and knee pain, but did not state that he currently suffered from neck pain or experienced neck pain during service. That notwithstanding, the Board finds that the evidence is at least in equipoise as to whether DJD of the cervical spine is etiologically related to service. Weighing against the Veteran's claim is the March 2012 VA examination report where the VA examiner diagnosed the Veteran with degenerative disc disease (DDD), intervertebral disc syndrome, and DJD confirmed by x-ray findings. The March 2012 VA examiner opined that the Veteran's DDD was not related to service because DDD was most often the result of injury, aging, or overuse and the medical literature did not support DDD as being secondary to "awkward positioning." The March 2012 VA examiner further noted that the Veteran was a firefighter for 23 years which would more likely be the reason for his cervical spine condition. The Board finds the March 2012 VA medical opinion to be of little probative value as the examiner did not address whether DJD, confirmed by x-ray findings, was related to service. Weighing in favor of the Veteran's claim is a February 2013 VA treatment note. During the February 2013 treatment evaluation, the Veteran reported neck pain and stated that he believed it was from wearing body armor and Kevlar on patrols while in service. The Veteran further stated that he had no neck pain prior to deployment to Iraq. The February 2013 VA physician noted that it took a few years to diagnose the Veteran's cervical stenosis because he initially complained of shoulder pain. The VA physician noted and reviewed the Veteran's current medications, military history, social history (including his employment as a firefighter), and conducted a physical examination. The VA physician, who had been treating the Veteran since approximately 2009, noted that review of MRI results in 2007 showed degenerative changes with moderate stenosis at C4-5, C5-6, and C6-7. Given the Veteran's history, the VA physician opined that the Veteran's cervical spine condition was probably caused by or exacerbated by his deployment to Iraq in 2003 to 2004. For these reasons, the Board finds that the evidence weighing for and against the Veteran's claim for service connection for DJD of the cervical spine is at least in equipoise. Therefore, resolving reasonable doubt in favor of the Veteran, service connection is warranted for DJD of the cervical spine. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102. ORDER Service connection for degenerative joint disease of the right shoulder is granted. Service connection for degenerative joint disease of the left shoulder is granted. Service connection for degenerative joint disease of the cervical spine is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs