Citation Nr: 1331691 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 12-35 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for right shoulder disability, to include bursitis and osteoarthritis. 2. Entitlement to service connection for left shoulder disability, to include osteoarthritis. REPRESENTATION Appellant represented by: John F. Dowd, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active from November February 1955 to February 1975. This case comes to the Board of Veterans' Appeals (Board) on appeal from July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in July 2013. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's current right shoulder disability is etiologically related to his active duty. 2. The evidence is in equipoise as to whether the Veteran's current left shoulder disability is etiologically related to his active duty. CONCLUSIONS OF LAW 1. Giving the Veteran the benefit of the doubt, a right shoulder disability was incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Giving the Veteran the benefit of the doubt, a left shoulder disability was incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a chronic disorder such as a osteoarthritis is manifest to a compensable degree within one year after separation from active service, it may be presumed to have been incurred in service. See 38 U.S.C.A.§§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 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, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran's service treatment records (STRs) include a December 1958 'discharge and reenlistment' examination report that reflects that there were no abnormalities of the upper extremities. In March 1970, he had right subdeltoid bursitis, and in April 1970, it was noted that he had had right shoulder discomfort for 7 to 8 weeks. He denied injury or strain. X-rays were negative. He was treated with medication and a sling. A report of retirement examination in December 1974 showed that his upper extremities were normal. It was noted that there were no problems with the right shoulder since the 1970 bursitis. Private treatment records show that the Veteran began treatment for both shoulders in 2008. The diagnosis was end stage osteoarthritis of the bilateral shoulders. T.M., M.D., notes that the Veteran reported in September 2009 that his right shoulder started hurting in the 1960's while stationed in Turkey, and the left one began hurting in the 1970's. He reported that he underwent general "wear and tear" of the shoulders in service. D.M.W., M.D., stated in August 2009 that it was certainly possible that pain the Veteran experienced in the 70's and to the present represents the gradual onset of an inflammatory process in his shoulders that has led to present day end stage arthritis. In a November 2010 statement, B.C., M.D., the Veteran's orthopedic surgeon, opined that there is a greater than fifty percent chance that the end stage osteoarthritis began while he was in service. He opined that the problems complained of in service could have led to chronic inflammation that has led to the end stage arthritis. The Veteran had arthroscopic right shoulder surgery in November 2010, in an effort to postpone total shoulder arthroplasty. The Veteran underwent physical therapy thereafter. The Veteran underwent VA examination in August 2012 to determine whether any current shoulder disability was due to service. The examining physician stated that bursitis could cause calcium deposits especially in the shoulder. He noted a lack of medical treatment from "1969 till 2008". He noted that the Veteran stated that he decided just to live with the pain, which was not uncommon for his age group. The examiner noted that he did not get to view the private treatment records including those related to the 2010 arthroscopic debridement. He felt it was necessary for him to obtain these before rendering an opinion as to causation. It was also noted that x-rays were not done as part of this examination because of a chemotherapy port that the Veteran had inferior to the right clavicle. The Veteran stated in an October 2009 statement that he went to see a medic in 1965 for right shoulder pain while stationed in Turkey. He was told to put plywood under his mattress but this did not help. He further stated that in 1970, he was given medication for the right shoulder bursitis. The pain did not taper off but instead persisted. At separation, he reported that he told the examiner that he had shoulder pain, and STRs reflect that he checked off 'arthritis, rheumatism or bursitis' on his report of medical history. He stated that he did not know that he should have seen a doctor within a year of separation from service for his shoulder disability. The Veteran's former wife (listed as married to him while he was in service) reported in August 2009 that the Veteran had shoulder problems in Maine in 1970. She noted that the problems persisted and gradually got worse. The Veteran's current wife, since 1986, noted in August 2009 that she became aware of his shoulder problems at the beginning of their relationship. Also in August 2009, the Veteran's daughter stated that she recalled her dad's shoulder pain in Maine in 1970. She also stated that the pain in his shoulders never went away and has continued to hurt him since that time. The Veteran testified that although he had bilateral shoulder pain since service, he simply did not seek treatment for many years. He also testified that he felt that B.C., M.D., who is a major in the reserves and performs many orthopedic surgeries, is an excellent physician whose opinion should be accorded considerable probative weight. The factual background set forth above reflects that a private physician has offered a favorable nexus opinion. The above-mentioned favorable private medical opinion appears to be based on correct facts, but offers little rationale. Therefore, while based on accurate facts, because its rationale is minimal, its persuasive value is somewhat diminished. Nonetheless, it appears that the examiner based his opinion on his knowledge of the Veteran's current disability, his knowledge gained through treatment of the Veteran and his awareness of the Veteran's service. He explained that the problems complained of in service could have led to chronic inflammation that has led to the end stage arthritis. On the other hand, the VA examiner offered no opinion other than to say that he would like to see the reports related to the Veteran's private treatment notes and X-rays prior to providing an opinion as to causation. However, the private physician did in fact have the benefit of viewing these private records, as he was treating the Veteran for the shoulders from 2008 forward. It appears that providing the private treatment records to the VA examiner is unnecessary under the circumstances, as the private examiner is competent to render an opinion and his opinion is supported by the record. Because a private physician has linked the current right and left shoulder disabilities to active service and, and no physician has actually controverted that opinion, the Board concludes that the evidence supportive of the claim is at least in equipoise with that against the claim. The Board also notes that the statements of the Veteran's ex-wife, his current wife and daughter support his claim that his pain was continuous since his 20 year period of service. Therefore, the Veteran is entitled to service connection for his current right and left shoulder disabilities. ORDER Service connection for right shoulder disability is granted. Service connection for left shoulder disability is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs