Citation Nr: 1338636 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-09 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a left wrist disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from March 2003 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the Virtual VA and VBMS system, to ensure a complete review of the evidence in this case. In June 2012, the Veteran presented testimony relevant to the appeal at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. On the day of the Board hearing, additional VA treatment records were received accompanied by waiver; therefore, the Board will consider this evidence in the first instance during the course of appellate review. FINDINGS OF FACT 1. The Veteran carried and lifted heavy weight and complained of left shoulder pain and left wrist pain during service. 2. The Veteran has had left shoulder pain and left wrist pain since service. 3. The Veteran's left shoulder pain and left wrist pain have been attributed to the diagnosis of tendonitis by a competent medical professional. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, left shoulder tendonitis was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. Resolving reasonable doubt in favor of the Veteran, left wrist tendonitis was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence); see also Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has been diagnosed with tendonitis. That disorder is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. In this case, as above, tendonitis is not listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply. Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this decision, the Board has considered the lay evidence as it pertains to the issue. 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"). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to evaluating the 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 the veteran's claims file. 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. 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). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). 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). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran contends that he has a left shoulder and a left wrist disorders due to injuries sustained during service. At the Board hearing, he testified that he sustained a left shoulder injury during service as a result of carrying rucksacks and heavy weight, sought medical treatment for left shoulder problems during service, and subsequently continued to experience left shoulder loss of motion, numbness, and swelling in the joint area. He also testified that he sustained injury to the left wrist when his left hand was crushed in a ramp door during service, had experienced a loss of "pressure" in the hand since the left wrist injury, and was currently diagnosed with left wrist tendonitis for which he took medication to treat the symptoms. After a review of the evidence, the Board finds that the Veteran currently has left shoulder and left wrist disabilities. At the July 2008 VA medical examination, the VA medical examiner wrote that he left shoulder pain and left wrist pain was due to tendonitis. Although he testified at the Board hearing that he "believe[d]" that a treating physician had also diagnosed him with carpal tunnel syndrome of the left wrist, the Veteran expressed some uncertainty regarding the diagnosis, and the medical evidence does not show a diagnosis of carpal tunnel syndrome, to include on the list of active problems in June 2012 VA treatment records where it would likely have been recorded. For these reasons, the Board finds that the only current diagnosis for the left wrist is tendonitis. Because the presence of a current left shoulder and left wrist disorders is established, the Board will consider whether each was incurred in service. The Board next finds that the Veteran experienced left shoulder pain and left wrist pain during service. The Board initially observes that service treatment records are incomplete in this case. See April 2008 Formal Finding Memorandum on the Unavailability of Service Records. Available service treatment records, however, show complaint of left shoulder symptoms in 2004, which was attributed to an assessment of neck pain with mild radicular signs. Also, when seeking treatment for the left hand crush injury in December 2003, the Veteran complained of left wrist pain at an "8" on the pain scale and demonstrated decreased left wrist flexion (50/80) and decreased ulnar deviation (30/45) on examination. The Board also finds that the Veteran often carried and lifted heavy weight during service. A February 2005 service treatment record notes his report of carrying a 60 pound backpack for three months when seeking treatment for low back pain. It is also noted in the service treatment records that he engaged in weightlifting during service. The Board further finds that the Veteran has experienced left shoulder symptoms and left wrist symptoms since service. When he filed the current claims in February 2008 (i.e., approximately one month after service separation), he indicated that he had experienced left shoulder symptoms, to include loss of mobility, and left wrist symptoms, to include loss of hand strength, since service. He is competent to report the left shoulder and left wrist symptoms, and the Board finds his statements as to symptoms since service to be credible and of great probative value, particularly given the fact that he filed claims for the disorders approximately one month after service separation. The Board further finds that the evidence is, at least, in equipoise on the question of nexus between current left shoulder tendonitis and left wrist tendonitis and service. The Board initially notes that there is no medical opinion of record addressing whether the Veteran's left shoulder tendonitis and/or left wrist tendonitis were incurred in service. However, as stated above, he has credibly reported that he has experienced left shoulder symptoms and left wrist symptoms since service. Approximately six months after service separation, the July 2008 VA medical examiner considered the Veteran's left shoulder symptoms and left wrist symptoms and attributed them to the diagnosis of tendonitis. Lay evidence can be competent to describe symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for left shoulder tendonitis and left wrist tendonitis is warranted. In light of the favorable disposition in this case, no discussion of the applicability and/or fulfillment of VCAA notice requirements is necessary. ORDER Service connection for a left shoulder disorder is granted. Service connection for a left wrist disorder is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs