Citation Nr: 1433282 Decision Date: 07/25/14 Archive Date: 07/29/14 DOCKET NO. 10-44 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from May 1962 to May 1964. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico (RO). The Veteran was scheduled for a December 2010 hearing before a decision review officer, but did not appear for the hearing. Additionally, in an October 2010 substantive appeal, he requested a Travel Board hearing but withdrew his hearing request in May 2012. The Veteran's hearing requests have, accordingly, been withdrawn. FINDINGS OF FACT 1. The Veteran was treated for a left shoulder dislocation in service. 2. The Veteran has currently diagnosed left shoulder degenerative joint disease. 3. Left shoulder arthritis did not manifest within one year of service separation. 4. The Veteran has credibly identified chronic left shoulder arthritis symptoms in service and continuous symptoms after service separation. 5. Left shoulder degenerative joint disease was incurred in service. CONCLUSION OF LAW Resolving the benefit of the doubt in favor of the Veteran, the criteria for service connection for left shoulder degenerative joint disease are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The Board is granting service connection for left shoulder degenerative joint disease. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Arthritis is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such 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. Id. In rendering a decision on appeal the Board must also 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. 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"). The Veteran contends that a currently diagnosed left shoulder disability is related to a service shoulder injury. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds, resolving all reasonable doubt in the Veteran's favor, that currently diagnosed left shoulder degenerative joint disease was incurred in service. Service treatment records show that the Veteran was treated for a left shoulder dislocation in December 1962 and January 1963. The Veteran was seen for left shoulder pain after heavy lifting in December 1962 with a history of left shoulder dislocation noted. December 1962 x-rays of the shoulder were normal. The Veteran continued to have complaints of pain in the left shoulder and he was put in cast for three weeks in January 1963 for a presumptive dislocation. The Veteran was seen again for left shoulder pain just prior to separation. He was evaluated in February 1964 for left arm pain and was seen for left shoulder pain secondary to physical therapy the next day. On a March 1964 separation examination, report of medical history identified having a painful or "trick" shoulder, with a notation further describing a "painful left shoulder" as well as a June 1963 dislocation. The Veteran has currently diagnosed left shoulder degenerative joint disease as shown by x-rays taken during a May 2011 VA examination. The Board finds that left shoulder arthritis did not manifest within one year of service separation. The May 2011 VA examiner reviewed in-service x-rays of the left shoulder and stated that findings were normal in service without radiologic findings of degenerative joint disease. The earliest x-ray evidence of arthritis was in January 2004, 40 years after service separation. See January 2004 VA x-rays. For these reasons, the Board finds that arthritis did not manifest to a compensable degree within one year of service separation to warrant the presumption of service connection under 38 C.F.R. §§ 3.307 and 3.309(a). The Board finds, however, that left shoulder arthritis symptoms were chronic in service and continuous after service separation. After the Veteran's initial left shoulder dislocation, treated in service, the Veteran continued to have complaints related to left shoulder pain in February 1964, and left shoulder pain was shown at the time of the Veteran's March 1964 separation examination. The Veteran reported in October 2010 that he injured his left shoulder in 1963, and was discharged by March 1964, and since that time, his left shoulder had not been in good condition, and that he had left shoulder pain present most of the time. During a May 2011 VA examination, the Veteran again, provided a credible report of the left shoulder dislocation in service, due to injury, consistent with findings in service treatment records. Moreover, he reported that he had a second left shoulder dislocation approximately five years after separation from service, which the Board finds is also credible. The Veteran indicated that he continued to have intermittent shoulder problems since service. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran has credibly identified chronic left shoulder pain symptoms in service, since his initial dislocation injury, as supported by findings in service treatment records and on separation, and he has credibly identified continuous left shoulder symptoms since service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7 (2004). While a May 2011 VA examiner opined that current degenerative joint disease in the left shoulder is less likely as not related to the Veteran's left shoulder condition in service, the VA examiner failed to address continued complaints of left shoulder pain shown in February 1964, just over one year after the January 1963 treatment for dislocation, and he failed to address the Veteran's reports of left shoulder pain shown at service separation. He also reasoned that there was no evidence of treatment for the left shoulder post-service until 2004, but failed to address the Veteran's reported history of a second dislocation five years after service, and his report of having chronic left shoulder symptoms since his left shoulder injury in service in his reasoning. Accordingly, the Board finds that the May 2011 VA opinion is not adequate as it does not consider all the relevant evidence of record, to include lay evidence which the Board has found to be credible. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"); Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board finds that the Veteran's testimony with respect to having symptoms of left shoulder pain in service and after service separation is credible and it is consistent with findings in service treatment records and reports made at separation. For these reasons, the Board finds that the weight of the evidence shows that the Veteran experienced chronic symptoms of left shoulder arthritis in service and continuous symptoms after service separation; therefore, the criteria for the presumptive provision of 38 C.F.R. § 3.303(b) have been met. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for left shoulder degenerative joint disease is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left shoulder disability is granted. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs