Citation Nr: 1536063 Decision Date: 08/24/15 Archive Date: 08/31/15 DOCKET NO. 13-36 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for left shoulder degenerative joint disease status post rotator cuff and glenoid labrum tear. REPRESENTATION Veteran represented by: Timothy R. Franklin, Attorney at Law WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Santiago, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1979 to June 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2013, the Veteran testified at a hearing before a decision review officer at the RO, and in July 2014, he testified at a Board video conference hearing before the undersigned Veterans Law Judge. Transcripts of the hearings are of record. FINDING OF FACT The Veteran's current left shoulder disability, degenerative joint disease status post rotator cuff and glenoid labrum tear, is related to his military service. CONCLUSION OF LAW The criteria for service connection for left shoulder degenerative joint disease status post rotator cuff and glenoid labrum tear have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, service connection requires evidence of a current disability, evidence of in-service incurrence or aggravation of an injury or disease, and evidence of a nexus between the current disability and the in-service disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert, 1 Vet. App. at 49. The Veteran contends that his current left shoulder disability is related to a left shoulder injury that occurred in service in 1997 while performing his duties as a geodetic surveyor and that his left shoulder has hurt since leaving the military. See August 2013 Veteran statement. The Veteran's service treatment records (STRs) include an outpatient record dated February 10, 1997, showing that the Veteran complained of left shoulder pain. The assessment at that time was probable rotator cuff strain. The Veteran underwent left shoulder surgery at a private facility in July 2011 where the preoperative and postoperative diagnoses were: left rotator cuff tear, left glenoid labrum tear, and acromioclavicular arthritis, left. The operative report indicates that the Veteran had an MRI-confirmed small tear of the supraspinatus insertion and also had labral abnormalities. Therefore, the evidence shows that the Veteran has a current left shoulder disability. The Veteran was afforded a VA examination in July 2012, an addendum opinion in October 2012, and another VA opinion in December 2012. The July 2012 VA examiner provided the following left shoulder diagnoses: rotator cuff tear, glenoid labrum tear, and acromioclavicular arthritis. The July 2012 examiner also opined that the Veteran's left shoulder disability was at least as likely as not related to service. The RO found that the July 2012 opinion needed clarification with supporting medical rationale. See September 2012 deferred rating decision. Thus, the October 2012 addendum opinion was provided by another VA examiner. The October 2012 examiner opined that it is at least as likely as not that the Veteran's current left shoulder disability with subsequent repair is related to the in-service shoulder complaint in 1997. Additionally, another VA opinion was provided by a different examiner in December 2012. The December 2012 examiner provided a negative opinion regarding a nexus between the Veteran's left shoulder disability and service. The December 2012 examiner stated that the Veteran's STRs are silent for any left shoulder injuries, complaints, evaluations, or treatments subsequent to the February 1997 STR. At the RO and Board hearings, the Veteran essentially asserted that the December 2012 did not take lay evidence into account in providing the negative opinion. Specifically, the Veteran asserted that he did not continue to complain of left shoulder pain in service for fear of being taken off duty, that he took pills post-service for other disabilities which also helped with his left shoulder pain, and that he finally sought treatment for the pain only when it worsened to the point of affecting his sleep. At the Board hearing the Veteran also indicated that he would obtain a private medical opinion. The Veteran submitted such opinion, dated May 2015, for which he waived review by the RO in a June 2015 written statement. See 38 C.F.R. § 20.1304(c) (2015). The May 2015 opinion was provided by a Board-certified orthopedic surgeon who also served as a Navy Flight Surgeon. After reviewing the Veteran's claims file and interviewing the Veteran over the telephone, the private physician concluded that "it is at least as likely as not that the [V]eteran's present left shoulder pathology/symptoms are the direct result of his military activities as a geodetic surveyor." Moreover, the private physician stated that his "opinions in this matter are actually much higher than that [at least as likely as not] standard as [his] opinions are with a high degree of medical certainty." The May 2015 opinion also includes medical literature reviewed in providing the positive opinion, reasons for why he believes the negative opinion provided in December 2012 is inaccurate, and references to the Veteran's and the Veteran's wife's statements describing the Veteran's left shoulder pain. Given that the evidence includes three positive opinions, including one from a physician with expertise in shoulder injuries who also considered the lay evidence of record, and that the December 2012 negative opinion appears not to have taken lay evidence into consideration but rather impermissibly relied solely on the absence of corroborating treatment records as a basis for the negative etiology opinion, the Board finds that the evidence is at least in equipoise regarding whether or not the Veteran's left shoulder disability is related to his military service. Therefore, resolving doubt in the Veteran's favor, the Board finds that service connection for left shoulder degenerative joint disease status post rotator cuff and glenoid labrum tear is warranted here. See 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310; Gilbert, 1 Vet. App. at 49. ORDER Service connection for left shoulder degenerative joint disease status post rotator cuff and glenoid labrum tear is granted. ____________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs