Citation Nr: 1554409 Decision Date: 12/31/15 Archive Date: 01/07/16 DOCKET NO. 11-15 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a right shoulder chronic musculoligamentous strain (a right shoulder disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 1972 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which, in pertinent part, denied entitlement to service connection for a right shoulder disability. FINDINGS OF FACT 1. The Veteran has a current right shoulder disability manifested by a chronic musculoligamentous strain. 2. The Veteran's right shoulder was injured during service. 3. The Veteran's current right shoulder disability is etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a right shoulder disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). 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) (2015). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015). In the case of conflicting medical opinions, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). 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 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). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Service Connection - Right Shoulder Disability The Veteran contends that symptoms associated with a right shoulder disability first manifested in service and have persisted since separation from service. He stated that he did not seek treatment for his right shoulder disability symptoms during service in order to avoid getting a negative reputation and because, once he was in the senior ranks, he needed to both set an example for and supervise the work of the people under his command. See September 2011 DRO Hearing Transcript at pgs. 3-4. He stated that he injured his shoulder over time by performing the various tasks required as part of his job as a cook. He described loading stores, which weigh up to thousands of pounds, by getting into a line and throwing the stores at each other until the stores were put away. He also describes having to stir hundreds of pounds of meat in the process of cooking it, and noted that he injured the shoulder on his dominant side. The Veteran also described changing out furniture in numerous buildings at different commands. As an initial matter, the Board finds that the Veteran has a currently diagnosed right shoulder chronic musculoligamentous strain, as documented in the April 2011 VA examination report. During his July 1992 exit examination, the examining physician noted that the Veteran could not perform overhead activities and his right shoulder "grinds." Based on this evidence and the Veteran's post-service reports of shoulder problems in-service, the Board finds that the Veteran incurred a right shoulder injury during service. In a November 2010 letter, the Veteran's treating chiropractor stated that he had been treating the Veteran for shoulder problems since 2003. The chiropractor stated that the Veteran told him that his shoulder has hurt since he got out of the service. The chiropractor described the Veteran's shoulder problems as chronic in nature, and stated that it is at least as likely as not that the shoulder injury started during service. He based this opinion on a review of his treatment notes dating back to 2004. Right shoulder treatment records from this chiropractor are in the record, and reflect consistent complaints of unremitting right shoulder pain. The Veteran was also afforded an April 2011 VA examination as to the nature and etiology of his right shoulder disability. The Veteran reported during the examination that he first experienced shoulder pain in the late 1970s. He stated that his symptoms improved as he moved up in rank and had fewer labor duties, unless he did the wrong thing such as reaching up above his head with something in his hand. He reported first seeking treatment in 1994 from a chiropractor. The examiner noted that the Veteran is right hand dominant. The examiner listed the Veteran's symptoms as pain and stiffness, with no arthritis. He found no evidence of grinding with movement. The examiner opined that it was less likely than not that the Veteran's current shoulder disability was caused by his in-service shoulder injury as described on his exit examination. The examiner stated that the Veteran's current right shoulder condition may more likely be to a congenital os acromiale. In testimony before a VA Decision Review Officer, the Veteran indicated that he saw the chiropractor who provided the November 2010 statement beginning in 2004 and that he had sought chiropractic treatment for the right shoulder prior to 2004 from another provider who was gone now. The Board finds that that Veteran has provided credible lay evidence as to the presence of right shoulder symptoms in service and since service. As noted above, the evidence supports a finding of an inservice right shoulder injury. As the medical opinions are in conflict as to the etiology of the Veteran's right shoulder disability, the Board must weigh the weigh the credibility and probative value of these opinions. The Board finds that the opinion from the Veteran's treating chiropractor has greater probative value, due to the chiropractor's greater familiarity with the Veteran and his right shoulder disability. See Evans, 12 Vet. App. at 30; see also Wensch v. Principi, 15 Vet. App. at 368. Upon review of all the evidence of record, the Board finds that the preponderance of the evidence weighs in favor of a finding that the Veteran's current right shoulder disability was caused by his shoulder injury during service. Accordingly, service connection for a right shoulder disability is granted. ORDER Entitlement to service connection for a right shoulder disability is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs