Citation Nr: 1330430 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 13-00 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for right shoulder injury. 2. Entitlement to service connection for right shoulder condition. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Brian E. Flannery, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to September 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for the Veteran's shoulder condition. FINDINGS OF FACT 1. Evidence added to the record since the final August 1991 denial is not cumulative or redundant of the evidence of record at the time of the decision, relates to the issue of the prior denial, and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection. 2. The examination at the time of induction did not note any right shoulder condition. 3. The current right shoulder condition to include arthritis was not manifest during service or within one year of separation and the current right shoulder condition is not attributable to service. CONCLUSIONS OF LAW 1. New and material evidence to reopen the previously denied claims of entitlement to service connection for right shoulder condition has been received. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The right shoulder condition to include arthritis was not incurred in service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. § 1101, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties under Veterans Claims Assistance Act of 2000 (VCAA) A. Duty to Notify VA satisfied its duty to notify the Veteran pursuant to the VCAA. See 38 U.S.C.A. § 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable Agency of Original Jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b) (1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, a letter was sent to the Veteran in September 2009 prior to the initial adjudication of his claim. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. B. Duty to Assist VA has also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and VA treatment records with the claims file. Specifically, the Veteran has indicated that he had surgery on his shoulder at Doctors Hospital in Columbus Ohio. Accordingly, the VA sent at least two requests and duly executed Release of Information to Doctors Hospital as well as followed up with phone calls. The Doctors Hospital replied with a letter indicating that The Veteran's records were over 22 years old and have therefore been destroyed pursuant to their normal retention policies. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Second, VA satisfied its duty obtain a medical opinion when required. The duty to assist also includes providing an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). In August 2012, VA provided the Veteran a medical examination and obtained a medical opinion addressing specifically the Veteran's shoulder condition and its etiology. The VA examiner could not render an opinion because the Veteran's C-file was not available. The VA provided the Veteran's C-file to the VA examiner and accordingly the VA examiner provided an opinion in November 2012. The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's claimed shoulder condition, provided a sufficiently detailed description of the disability, and provided an analysis to support the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). Moreover, while mindful that the Veteran is entitled to a Board hearing in support of his claim, the Board observes that he has expressly waived his right to such a proceeding. See VA Form 9, December 2012. Accordingly, the Board is satisfied that the Veteran's due process rights have not been compromised. Having thus established that VA has satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the adjudication of his claim. II. Merits of the Claim The Veteran claims he suffered a right shoulder injury while in service. As a preliminary matter is it not entirely clear which theory of entitlement the Veteran wants to pursue as his statements have been inconsistent. In December 2012 the Veteran filed a VA Form 9 which he acknowledged that he did in fact hurt his shoulder prior to service and that he was claiming that he either reinjured the shoulder or aggravated the condition beyond the normal progression. However, five days later the Veteran filed another VA Form 9 and this time indicating that he did not injure his shoulder prior to service. The VSO filed a Statement of Representative in Appeals Case which directed the attention of this Board to the second VA Form 9 which asserts that the Veteran did not have a pre-service injury to his shoulder. The Board certainly understands that it may be difficult to recall the exact chronology of events in 1962 and whether the Veteran first injured his shoulder before or during service. Therefore, the Board finds that it is appropriate to consider both of the Veteran's claims, that either he never had a preexisting condition, or in the alternative, if his right shoulder condition did preexist service, he aggravated the condition. The Veteran enlisted in the Navy on July 30, 1962. Two weeks into service, on August 13, 1962 the Veteran reported to sick call complaining that he had dislocated his shoulder three times. Upon examination the clinician determined that based on the clinical history and x-ray findings, it was suspected that the Veteran had previous difficulty and the clinician suggested an orthopedic consultation. On August 14, 1962 an orthopedic physician examined the Veteran. The Veteran reported a history of sustaining luxation of his right shoulder approximately four to five months prior while playing high school basketball. Examination revealed some laxity of the soft tissues about the shoulder. X-rays revealed a small chip in the Veteran's shoulder. The Doctor determined that the Veteran's shoulder was unstable and he should be "surveyed" from service because of the EPTE condition. As part of the Medical Board, on August 30, 1962 the Veteran signed a statement that his recurrent dislocating right shoulder preexisted service and disqualified him from military service. The Veteran waived his right at that time to make a statement in rebuttal. The Veteran now disputes this statement. The Veteran indicates that he had surgery on the shoulder in 1968. The VA accordingly contacted the Veteran's private medical provider in Columbus, Ohio to obtain the medical records of this surgery. However, the private medical provider indicated that, if the Veteran was treated, the records would have been destroyed long ago given the date of the claimed treatment. Therefore no records of this surgery exist. The VA did provide the Veteran with an examination of his shoulder in August 2012. The VA examiner performed a full and complete examination of the Veteran's right shoulder; however he could not give an opinion without resorting to speculation because he did not have access to the Veteran's service treatment records. Accordingly, the VA provided the examiner the Veteran's records. In November 2012, the VA examiner reviewed the Veteran's claims file including service treatment records and VA medical records. The examiner stated that it is less likely than not (less than 50/50 probability) that the veteran's claimed right shoulder condition incurred in, caused by, the result of, aggravated by, or aggravated beyond the natural progression by dislocation of right shoulder on 7/10/1962. As the basis for his opinion, the examiner specifically cited to the August 1962 service ortho consult and VA medical records dated in October and December 2009 and noted that the Veteran admitted to injuring his right shoulder 4 to 5 months prior to entrance into military service, the Veteran only served approximately 2 months on active service, and that the Veteran's medical records fail to document a chronic right shoulder complaint or condition until 2009, 47 years after military service. Reopen The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran may reopen his claim for a right shoulder condition if he provides new and material evidence. The provisions of 38 C.F.R. § 3.156 (which define "new and material evidence") provides as follows: New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. The Record reflects that the Veteran first made a claim for his right shoulder condition in June 1991. The RO denied the claim in August 1991 finding that the Veteran's right shoulder condition preexisted service and was not aggravated by service. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. Therefore the RO decision of June 1991 became final. In July 2009 the Veteran filed another claim for right shoulder injury. In support of this claim the Veteran has given lay statements relevant to his claim that were not provided in 1991. Further the VA has afforded the Veteran a December 2009 orthopedic consultation and an August 2012 VA examination. In this case, the evidence provided relates to a specific issue that was not established in the last decision, which is whether the Veteran's right shoulder condition pre-existed service. As such, the evidence received since the August 1991 decision relates to an unestablished fact necessary to substantiate the claim for right shoulder injury and raises a reasonable possibility of substantiating the claim. Therefore the Board finds that new and material evidence has been received for the purposes of reopening the Veteran's claim for right shoulder injury. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Board will accordingly proceed with the Veteran's claims. Preexisting injury The 1991 Rating Decision denied service connection benefits to the Veteran based on the findings of a preexisting shoulder injury. The Board will therefore address the presumption of soundness as it relates to preexisting injuries. A veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). A veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury preexisted service. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The Veteran's service treatment records include entrance examination paperwork. There are a number of preexisting conditions; however there is no notation of a preexisting shoulder injury. Therefore the Board finds that there was no shoulder disorder noted at the time of examination, acceptance and enrollment. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) While the Veteran is competent to report on factual matters of which he has first-hand knowledge (see Washington v. Nicholson, 19 Vet.App. 362, 368 (2005)), his recollection of in-service events is inconsistent with the evidence contained in the claims folder. The Veteran has recently made inconsistent statements despite indicating that his condition was preexisting at the time of service. As such, the Board finds that his current description of in-service events less reliable. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). In an August 14, 1962 service orthopedic consultation, the orthopedic physician noted that the Veteran reported a history of sustaining luxation of his right shoulder approximately four to five months prior while playing high school basketball. Examination revealed some laxity of the soft tissues about the shoulder. X-rays revealed a small chip in the Veteran's shoulder. The Doctor determined that the Veteran's shoulder was unstable and he should be "surveyed" from service because of the EPTE condition. As part of the August 30, 1962 Medical Board, the Veteran signed a statement that his recurrent dislocating right shoulder preexisted service and disqualified him from military service. The Veteran waived his right at that time to make a statement in rebuttal. More recently, the 2012 VA examination reveals that the Veteran did not aggravate his condition by dislocating his shoulder in service. While the service treatment records do indicate that the Veteran's shoulder condition predated service, the Board does note that these records do not specifically state whether the bone chip itself was caused by the dislocation suffered in service or a prior dislocation. The service treatment records further do not indicate whether the dislocation in service caused any additional damage to the right shoulder. The Board may place greater probative value on the normal contemporaneous service department records, and the acknowledgement of the Veteran's preexisting shoulder condition than on the more recent statements of the Veteran, made in connection with his claim for monetary benefits from the government. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Such records can be more reliable, in the Board's view, than the Veteran's unsupported assertions of what occurred during service. The Veteran's statements are self-serving and are unsupported by his service records. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). For example, although the 2012 VA examiner did conclude that there was no aggravation, this statement was made 50 years after the incident and therefore would not carry as much weight as if it were made closer in time to the incident. Likewise the Veteran's statements made for the purpose of medical diagnoses and care, along with the service treatment records, would carry more probative weight than current statements made in support of a claim. However, clear and unmistakable evidence means that the evidence " 'cannot be misinterpreted and misunderstood, i.e., it is undebatable.' " Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Vanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) ("[O]nly an inference that is iron clad and copper riveted can be 'unmistakable.' "). In the present case the evidence does tend to show that the Veteran had a preexisting condition while in service and that it was not aggravated by the dislocation during his brief time in service. Despite being persuasive, this evidence does not rise to the level of being undebatable and therefore does not rise to the onerous burden placed on the VA. There is no specific indication that the clinician at the time was able to determine that the bone chip in the right shoulder existed prior to service. Therefore, the presumption of soundness has not been rebutted, and this case will proceed as a regular service connection case. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Service connection The Board notes that the Veteran's current diagnoses include arthritis and impingement in this right shoulder. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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). There is no medical evidence of the Veteran having right shoulder arthritis and impingement while in service. However, the Board observes that service connection for arthritis will rebuttably be presumed if it manifests to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Service connection also will be presumed based upon a showing of continuity of symptomatology emanating from service. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). In this case, the Veteran's service treatment records are devoid of any reports of arthritis of the right shoulder. The first diagnosis of arthritis of the right shoulder is found in VA treatment records in 2009, 47 years after service. Additionally, the Board observes that the 2009 VA treatment records are the first documentation of any right shoulder complaint after service. Since there is no evidence that arthritis developed in the Veteran's shoulder during service or the applicable presumptive period and there is no evidence of continuity of symptomatology emanating from service the presumption does not apply. Therefore the current right shoulder conditions of arthritis and impingement are not directly service connected. The Veteran has also raised a condition for recurrent dislocation of his right shoulder. In this regard the Board finds that the Veteran has not met the Shedden nexus requirement. To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). 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). 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 claim 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). In this case, there is conflicting evidence on the issue of nexus with respect to the Veteran's recurrent right shoulder dislocation claim. In support of this claim, the Veteran argues that his present claimed shoulder condition is related to his dislocation of the same shoulder in service. The Board has considered all lay evidence, including the Veteran's own statements. The Veteran's assertions sit in contradiction to a November 2012 VA examination report. In the report, the examiner performed a complete and comprehensive examination of the Veteran's right shoulder. The VA examiner reviewed the Veteran's medical history obtained from the claims file and interviewed the Veteran, and included the following opinion: "IT IS LESS LIKELY THAN NOT (LESS THAN 50/50 PROBABILITY) that the vets claimed right shoulder condition incurred in, caused by, the result of, aggravated by, or aggravated beyond the natural progression by dislocation of right shoulder on 7/10/1962." The Board finds the November 2012 VA examiner's opinion to be competent and credible. In making this determination, the Board has "look[ed] at factors such as the health care provider's knowledge and skill in analyzing the medical data.:" Black v. Brown, 10 Vet. App. 279, 284 (1997). In this regard, the Board observes that the November 2012 VA examiner is a state-licensed physician's assistant with both education and training in the field of shoulder conditions making him competent to testify on the issue. Moreover, the Board observes that "most of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the VA examiner noted that the Veteran admitted to injuring his right shoulder 4 to 5 months prior to entrance into military service, the Veteran only served approximately 2 months on active service, and that the Veteran's medical records fail to document a chronic right shoulder complaint or condition until 2009, 47 years after military service. The VA examiner's report reflects that he thoroughly considered the current test results, the service record, past test results, statements from the Veteran, and the time lapse between service and the complaints of symptoms. Further, the VA examiner's report reflects that he thoroughly examined the Veteran's right shoulder. He considered the Veteran's medical history along with the Veteran's own statements regarding the 1962 shoulder dislocation and 1968 surgery to treat the condition. He also considered the Veteran's statements that the shoulder "pops out" and the shoulder's effect on employment. The VA examiner further considered the 2009 orthopedic consultation along with a full history, severity, and frequency of symptoms and reviewed the same with the Veteran to insure accuracy. The VA examiner continued with a full and complete physical examination of the Veteran's shoulder. This included examinations of flare ups, range of motion, repetitive use, pain on palpation, muscle strength, ankylosis, tests on the rotator cuff, history of instability, and history of related joints. The VA examiner further considered an October 2009 x-ray which indicated the right shoulder study reveals a series of calcific opacities adjacent to the lateral aspect of the humeral head consistent with calcific tendinitis. The right shoulder studies otherwise satisfactory. A November 2009 MRI on the Veteran's right shoulder demonstrated rotator cuff tendon with distal supraspinatus and infraspinatus tendonitis. There is no rotator cuff tear. Mild subdeltoid bursitis. There is moderate glenohumeral and acromioclavicular joint arthritis. In reviewing the VA examiner's considerations and rationale, along with the rest of the claims file, it certainly follows that a shoulder dislocation in 1962 is not the cause of the Veteran's current shoulder condition. These considerations and the VA examiner's rationale support his findings. The Board therefore finds the VA examiner's report is entitled to great probative weight. In an attempt to refute the above examiner's opinion, the Veteran has supported his position with his own lay statements. The Board notes that the Veteran's complaint in 2009 to the orthopedic surgeon was arthritis and impingement of his right shoulder. The Veteran was concerned about calcium build up on his shoulder and was wondering if there was anything that could be done. It was determined that the problem was minor and the Veteran did not need surgery to which the Veteran agreed. It is also apparent that the bone chip in the shoulder has been removed. The Board further notes that the Veteran has made inconsistent statement regarding the original cause of the shoulder condition. As noted above his inconsistent statements on his two December 2012 VA from 9 filings show at the very least that the Veteran may not have the most accurate understanding of his condition. This is of course understandable given the almost 50 years from the time the Veteran served until the time the statements were made. The Board would also note that the Veteran did not disclose his prior shoulder dislocation at the time he entered the service but later inform medical personnel of this issue when seeking medical treatment which further adds inconsistencies to the Veteran's statements. For the reasons stated above, the Veteran's statements do not rise to the weight of the medical evidence contained in the file. The Board therefore finds that the medical evidence in the file is more probative and that there is not a sufficient nexus between the Veteran's present shoulder condition and the disease or injury incurred or aggravated during service. In reaching these conclusions, the Board remains sympathetic to the Veteran and does not question the sincerity of his belief that service connection is warranted for his shoulder condition. Nevertheless, for the reasons detailed above, the preponderance of the competent and credible evidence weighs against his assertions of service connection under either direct or presumptive theories of entitlement. As such, while mindful of the benefit-of-the-doubt rule, the Board finds that rule is not for application and that service connection must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for right shoulder condition is denied. ____________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs