Citation Nr: 1329993 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-23 868 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUE Entitlement to service connection for a claimed right shoulder disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from December 1968 to October 1970 and from January 1971 to December 1971. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision by the RO. Following the issuance the June 2009 Statement of the Case, the Veteran submitted additional evidence directly to the Board. The RO has not considered this evidence; however, the Veteran has waived consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012). FINDING OF FACT The currently demonstrated right shoulder degenerative joint disease with impingement and damage to the supraspinatus tendon is shown as likely as not to be due to chronic manifestations of supraspinatus tendonitis that the Veteran exhibited during his period of active service. CONCLUSION OF LAW By extending the benefit of the doubt in favor of the Veteran, his right shoulder disability manifested by degenerative joint disease with impingement and damage to the supraspinatus tendon is due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54. I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA issued a VCAA notice letter to the Veteran in December 2007, prior to the initial adjudication of his claim. This letter informed the Veteran of what evidence was required to substantiate his service connection claim and of his and VA's respective duties for obtaining evidence. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. II. Law and Regulations In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (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 or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. III. Analysis The Veteran is seeking service connection for a right shoulder condition. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against his claim. The Veteran's service treatment records document that he received treatment for right shoulder pain on multiple occasions. While the Veteran's November 1971 separation examination found that his upper extremities were clinically normal, the record clearly indicates that he incurred an in-service injury or disease involving his right shoulder. Following his separation from service, the first documented subjective complaint or finding of a right shoulder condition comes from a May 2007 VA treatment record which diagnosed the Veteran with acromioclavicular joint arthritis and "subacromial bursitis vs. rotator cuff tendonitis." While the Veteran reports experiencing shoulder pain since he separated from service, the May 2007 VA treatment record is the first competent evidence of arthritis. Accordingly, service connection cannot be granted on a presumptive basis under 38 C.F.R. § 3.309(a). As the record contains evidence of a current disability, and evidence of an in-service injury or disease, what remains to be established is whether there is a nexus between the diagnosed right shoulder disabilities and his in-service disease or injury. In support of his claim, the Veteran submitted a September 2011 statement from B.M., PA-C, who indicated that the Veteran's current "shoulder injuries and shoulder pains are consistent with [his] military service." In contrast, following a physical examination and a review of the claims file, the February 2008 VA examiner opined that it was less likely than not that the Veteran's current shoulder condition was related to his active duty. The examiner noted that an MRI showed that the Veteran had degenerative joint disease of the acromioclavicular joint with impingement and damage to the supraspinatus tendon. In support of his opinion, the VA examiner noted that the Veteran had no significant pain in either shoulder and "continued to work for 35 years in heavy labor, loading and unloading trucks and doing construction work and was presently" working in a job that required heavy lifting. The VA examiner added that, while the Veteran reported seeking treatment for his right shoulder following his separation from service, he was unable to remember the physician's name or the insurance company that covered his care. It was noted that the Veteran's records with VA went back to 1997, but showed no evidence of any difficulty with the right shoulder following his separation from service until 2007. The Board has considered the Veteran's statements that his right shoulder disability is related to his in-service complaints of right shoulder pain. His lay assertions are assigned significant evidentiary value and are consistent with the private medical opinion. See Jandreau, supra. As noted, the Veteran reported continuing to experience shoulder pain following his separation from service. In this regard, the Board notes that an August 1971 service treatment record diagnosed the Veteran with a "possible arthritic condition" and requested an orthopedic consultation. A subsequent October 1971 consultation report documented that that X-ray studies revealed that the Veteran's right shoulder was "within normal limits" and arthritis was "rule[d]-out" as a potential diagnosis. However, the Veteran continued to receive ongoing treatment including several injections for his right shoulder manifestations. In August 1971, the Veteran was rendered medical attention for complaints of recurrent stiffness, constant pain and a grinding sensation of the right shoulder. The diagnosis reported at that time was that of supraspinatus tendonitis of two years duration. The examiner added that he had been injected with only temporary relief, but the symptoms always returned. Based on a careful review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the current right shoulder degenerative changes and impingement as likely as are causally related to the chronic manifestations involving the supraspinatus tendonitis that had their clinical onset during the Veteran's period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for the right shoulder degenerative changes with impingement and damage to the supraspinatus tendon is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs