Citation Nr: 1327520 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 10-17 460 ) 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 disorder. 2. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to July 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the current appellate claims. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2011. A transcript of this hearing has been associated with the Veteran's VA claims folder. Further, subsequent to this hearing the Veteran submitted additional evidence directly to the Board accompanied by a waiver of having such evidence initially considered by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304(c) (2012). As an additional matter, the Board observes that in a January 2013 statement the Veteran reported he was seeking a temporary total rating for his service-connected left knee disorder, as well as an increased rating for his service-connected lumbar spine disorder. Nothing in the record available for the Board's review, to include the Virtual VA system, reflects these claims have been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT The competent and credible evidence of record reflects it is at least as likely as not that the Veteran's current disabilities of both shoulders developed as a result of his active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a right shoulder disorder are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for a grant of service connection for a left shoulder disorder are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, and for the reasons detailed below, the Board finds that service connection is warranted for both of the Veteran's shoulder disorders. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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). 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). In this case, the Veteran contends, in essence, that he had no problems with his shoulders prior to service and that he developed recurrent pain in both shoulders while on active duty. He also maintains that he self-treated these problems, for the most part, during his active service and for many years thereafter. The Board notes that a lay person is competent to describe injuries and complaints of pain. Further, in this case, the Veteran's military occupational specialty (MOS) was that of a Medical Service Technician, and he received training as an Emergency Medical Technician and Allergy-Immunology Technician. The record reflects he continued to work in the medical field following service. As such, his contentions constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1); see also Goss v. Brown, 9 Vet. App. 109, 114-15 (1996). Nevertheless, the Board may take the Veteran's self-interest into account is assessing the weight to be accorded to his self- assessment. See Pond v. West, 12 Vet, App. 341, 345 (1999) (Although the Board must take a physician-veteran's opinions into consideration, it may consider whether self-interest may be a factor in making such statements, even if the veteran himself is a health care professional); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (The Board may consider self interest in evaluating the testimony of claimants). The Veteran reports that his shoulder problems originated as a result of having to carry patients as part of his in-service duties. Such activities appear consistent with his MOS. Moreover, VA has already accepted this account as true when it established service connection for a lumbar spine disorder on a similar basis. The Veteran's service treatment records reflect his upper extremities were clinically evaluated as normal at the time of his January 1979 enlistment examination. He also indicated on the concurrent Report of Medical History that he had not experienced painful or "trick" shoulder or elbow. He was subsequently treated for complaints of right shoulder pain in November 1982 and April 1987, the latter of which was due to a fall that occurred while playing volleyball. He was also treated for an injured right biceps in October 1984 from playing football. Nevertheless, no significant pathology was identified on X-rays taken of the right shoulder in 1982. Similarly, X-rays of the right shoulder in April 1987 showed no significant bony, articular, or soft tissue abnormality, and resulted in an overall impression of normal right shoulder. No treatment for left shoulder complaints appears in the service treatment records. Although the record indicates the Veteran expressed his desire for a separation examination at the time of his discharge from service, no such examination appears in the record. The Board also observes that there is no indication of any post-service medical treatment for either shoulder until 2006 at which time degenerative bilateral changes were noted in the shoulders. The absence of any medical records of a diagnosis or treatment for many years after service can serve as probative evidence against a claim. Further, there is evidence that the Veteran was injured in a 2006 motor vehicle accident with right and left arm strain. Moreover, a March 2010 VA examiner opined that his bilateral shoulder condition was less likely as not (less than 50/50 probability caused by or a result of in-service events or injury. In support of this opinion, the examiner stated that although the Veteran having reported recurrent shoulder symptoms beginning in service he could not document such symptoms. The Board notes, however, that the Veteran has contended, to include at his March 2011 hearing, that he self-treated his shoulder problems following service, and that he had recurrent problems thereof even prior to the 2006 motor vehicle accident. His testimony on this matter is credible and it is a plausible explanation especially given his medical training and experience. Further, his spouse submitted a lay statement in 2011 attesting, in part, to his having had recurrent shoulder problems since they met in 1991. He also submitted lay statements in 2011 from two registered nurses who noted having worked with the Veteran, and attested to having observed his self-treatment of shoulder pains from August 1997 to November 1999 and from January 2001 to March 2005 respectively. In short, the Veteran has submitted his own credible statements and testimony regarding self-treatment, as well as supporting evidence for his spouse and two registered nurses. Moreover, the March 2010 VA examiner did acknowledge that his opinion in this matter would be different "[i]f we had medical or similar evidence of continuity of his shoulder complaints shortly after service and thereafter..." The Board also wishes to emphasize that the law mandates when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and credible evidence of record reflects it is at least as likely as not that the Veteran's current disabilities of both shoulders developed as a result of his active service. Therefore, service connection is warranted for these disabilities. ORDER Service connection for a right shoulder disorder is granted. Service connection for a left shoulder disorder is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs