Citation Nr: 1326623 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-18 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from January 1994 to May 2001 and March 2002 to August 2002. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2010 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The Veteran incurred a right shoulder injury during active service; symptoms of a right shoulder disorder have been unremitting since service separation; and the Veteran's current right shoulder disorder is related to his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a right shoulder disability have been met. 38 U.S.C.A. §§ 101, 1101, 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 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. The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply to this case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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). 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"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that 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); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 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 a veteran's 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. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has a right shoulder disability that began during active service. Specifically, he avers that it was caused by constant carrying of heavy packs during service. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did sustain an injury or disease of the right shoulder during active service, but that symptoms of the right shoulder injury were not unremitting in service and resolved prior to service separation. The Veteran's service treatment records show that in October 2000, he reported right shoulder pain for "years" with no precipitating trauma. An arthrogram was negative with no evidence of a rotator cuff tear. However, an MRI study showed tendinosis and a loose joint body in the axillary pouch, with no evidence of impingement. The Veteran underwent arthroscopic surgery in December 2000 to remove the loose body and repair a small subscapular tear found during surgery. He subsequently completed a course of physical therapy, and in February 2001, it was noted that he had full motion and no pain. A July 2002 Report of Medical Assessment, completed one month prior to service separation, is negative for any report, complaints, or findings of right shoulder problems, indicating that the shoulder injury had resolved. Moreover, there is no documentation of complaints, treatment, or findings of a right shoulder disability following service separation until January 2010, when the Veteran filed his claim for service connection. However, the Board finds that the evidence is at least in equipoise as to whether the current right shoulder disorder began during active service. The Veteran was afforded a VA examination in May 2011. He reported moderate to severe right shoulder pain that occurred once weekly, lasting for hours, that began in the late 1990s (when he underwent surgery during active service). The VA examiner reviewed the claims file and conducted a physical examination and interview of the Veteran. The VA examiner opined that current findings were more likely than not caused by acute strain rather than a chronic condition that began during military service, reasoning that only mild disability of the right shoulder was shown during range of motion testing, with no obvious discomfort or abnormalities during physical or radiographic exams. Notably, no precipitating shoulder injury (other than the in-service shoulder injury) was reported by the Veteran or cited to by the VA examiner. Despite the VA examiner's negative nexus opinion, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's right shoulder disorder had its onset during active service. There is no documentation of a post-service right shoulder injury that could have caused an acute condition such as that diagnosed by the 2011 VA examiner. Indeed, the only documentation of a right shoulder injury is that which occurred during active service. Thus, the VA examiner appears to have relied on assumed facts in reaching his conclusion, rendering his opinion minimally probative. Reonal, 5 Vet. App. at 461. Moreover, the Veteran is competent to testify as to the onset of the shoulder disorder, as it is observable by a layperson. See Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d at 1336. The Veteran has been consistent in the history he has provided (that his right shoulder pain began during active service), and there is no conflicting evidence regarding the history of onset of the shoulder disorder. In summary, based on the documentation of the in-service right shoulder injury during active service, the Veteran's competent and credible statements regarding unremitting shoulder pain after active service, and lack of evidence of any intervening, post-service shoulder injury, with the resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a right shoulder disability are met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the full grant of benefits sought on appeal, no conceivable prejudice to the Veteran could result from this decision; therefore, no discussion of compliance with the VCAA is necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). ORDER Service connection for a right shoulder disability is granted. REMAND The Veteran contends that he incurred a left knee disability while in service, caused by the stress of running. He also avers that it was caused or aggravated by his service-connected right knee or back disabilities. The September 1993 service enlistment examination report indicates that the Veteran suffered a left knee injury while playing football prior to service, described as "stretched ligaments," that was treated with physical therapy in 1989 or 1990. He reported some knee pain if he stepped down on it hard at the time of enlistment. However, physical examination revealed full range of motion and no swelling or giving way. He scored a 2+ on Lachman's test, a 1+ on the anterior drawer test, and a 1+ on the pivot shift test. An x-ray study of the knee was negative. The examining clinician assessed hypermobile knee joints and stated he doubted actual anterior cruciate ligament insufficiency. In other words, the pre-service left knee injury appears to have resolved prior to service enlistment. The remainder of the Veteran's service treatment records does not reveal any reports, complaints, symptoms, findings, treatment, or diagnoses of a left knee condition. Moreover, the first post-service documentation of a left knee problem in June 2009 indicates the Veteran reported three months of knee pain with no precipitating injury. However, in light of the contention that the left knee disability is related to the service-connected right knee or back disabilities, the Board finds that a VA examination is necessary to determine whether the Veteran's current left knee disability was caused or aggravated by the service-connected right knee or back disabilities. Although a December 2012 VA examination was conducted to determine the nature of the left knee disability, no nexus opinion was provided. Accordingly, the issue of entitlement to service connection for a left knee disability is REMANDED for the following action: 1. Afford the Veteran examination to address the causation or etiology of any current left knee disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. a. The examiner should first identify any and all current left knee disorders, if any. b. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that any current left knee disorder has been caused or aggravated (permanently worsened in severity) by the Veteran's right knee or back disabilities. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. If the examiner opines that the Veteran's left knee disorder was aggravated (permanently worsened in severity) by his right knee and/or back disability, the examiner should attempt to identify the baseline level of severity of the left knee disorder before the onset of aggravation. If the opinions and/or supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion is due to a need for further information (with such needed information identified) or because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's claimed left knee disorder. 2. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs