Citation Nr: 1612657 Decision Date: 03/29/16 Archive Date: 04/07/16 DOCKET NO. 10-05 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a right shoulder disability. REPRESENTATION The Veteran is represented by: Charles D. Romo, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Amanda Radke, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served honorably on active duty from February 1986 to January 1994. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for a bilateral shoulder disability. The Veteran testified at a Travel Board hearing in St. Petersburg, Florida, before another Veterans Law Judge, who has since retired. A transcript of that hearing has been obtained. This matter was previously remanded by the Board in an August 2013 decision to obtain a new VA examination and opinion. As discussed below, this decision constitutes a full grant of all benefits sought on appeal; therefore, no discussion of substantial compliance with the prior remand order is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). FINDINGS OF FACT 1. The Veteran has current bilateral shoulder dislocations with bilateral osteoarthritis, acetabular tear, tendinosis, and bursitis. 2. The chronic bilateral shoulder dislocations were incurred in service. 3. The Veteran has experienced continuous symptoms of bilateral shoulder pain since service separation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a left shoulder disability of osteoarthritis and chronic dislocations have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a right shoulder disability of osteoarthritis and chronic dislocations have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). In the present case, the Board is granting the claim for service connection for a bilateral shoulder disability. This decision constitutes a full grant of the benefits remaining on appeal; therefore, no further discussion regarding VCAA notice or assistance duties is required. Service Connection for Bilateral Shoulder Disability 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, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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). For a chronic disease such as arthritis, 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. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have 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) (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, including arthritis, 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 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive 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. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d, 1372, 1376-77 (Fed. Cir. 2007). 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. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 469; 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"). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran generally contends that the bilateral shoulder disability of chronic dislocations began in service and has continued to this day, developing osteoarthritis, tendinosis, and bursitis bilaterally. The Veteran testified that he dislocated his left shoulder the first time playing basketball in service and "popped it back in" himself, but the shoulders continued to dislocate multiple times, including the right shoulder, while in service. See October 2012 Board hearing transcript. The Board finds that the Veteran has a current bilateral shoulder disability. In April 2014, the Veteran was afforded a VA examination to help assess the nature and severity of the bilateral shoulder disability. At that time, the VA examiner diagnosed bilateral shoulder dislocations with bilateral osteoarthritis, acetabular tear, tendinosis, and bursitis. Furthermore, review of VA treatment records show a diagnosis in 2009 of bilateral Hills-Sachs of the humerus and mild osteoarthritic changes bilaterally. Hills-Sachs is a compression fracture that occurs with dislocations of the shoulders. See Dorland's Illustrated Medical Dictionary 1025 (32d ed. 2012). Additionally, an August 2008 VA treatment records states that the Veteran suffers from bilateral shoulder pain and dislocations, with the left worse than the right. The Board finds that the evidence is at least in equipoise regarding whether the chronic bilateral shoulder dislocations were incurred in service. As stated above, the Veteran contends that he first injured his left shoulder playing basketball while on active duty and the shoulder dislocated and he was able to reduce the shoulder back into the socket himself. The Veteran testified that, after the dislocation while playing basketball, the shoulder would chronically dislocate numerous times. The Veteran additionally testified that, during service, both shoulders would dislocate numerous times during service, at any given moment, such as turning in his sleep, and that the symptoms of bilateral dislocation have been continuous since service separation. See October 2012 Board hearing transcript. Service treatment records show complaints of left shoulder dislocation, but no complaints of the right shoulder. An August 1990 service treatment record states that the Veteran has a painful left shoulder that "slips" out of the joint, with an onset one year ago while playing basketball. An October 1992 service treatment record states that the Veteran has chronic left shoulder dislocation occurring two times per month and the Veteran is able to reduce himself. A March 1993 service treatment record shows that the Veteran received imaging of the shoulders that showed laxity, and bilateral step off at the AC joints. There was no service separation examination associated with the service treatment records. In April 2008, the Veteran was afforded a VA examination to help assess the nature and etiology of the left shoulder disability. At that time, the VA examiner stated that an opinion regarding the etiology of the left shoulder dislocations could not be made without resorting to speculation. In April 2014, the Veteran was afforded another VA examination to help assess the nature and etiology of the left shoulder disability. At that time, again, the VA examiner stated that an opinion regarding the etiology of the left should dislocations could not be made without resorting to speculation. The Board finds that, based on the medical and lay evidence, for the left shoulder dislocations, the evidence is at least in equipoise regarding whether the current left shoulder chronic dislocations began during service, that is, were "incurred in" service. Shoulder dislocations are capable of lay observations, and the Veteran sought treatment for the left shoulder dislocations while in service. See Jandreau, 492 F.3d, at 1376-77; Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (stating that a veteran is competent to report a hip disorder with rotated foot, joint pain, limited duty, physical therapy, and sick call/treatment in service). There is no medical opinion that opines that the left shoulder disability was not incurred in service. Therefore, the Board finds that the current chronic left shoulder dislocations were incurred in service. Regarding the right shoulder dislocations, in April 2014, the Veteran was afforded a VA examination to assess the nature and etiology of the right shoulder disability. At that time, the VA examiner opined that it was less likely than not that the right shoulder disability is causally related to active military service because of no documented complaints of right shoulder dislocations until 2008 and because the Veteran worked as a painter after service, which would exert stress on the shoulders. Nonetheless, the Board affords this opinion little probative value, as the VA examiner did not consider the Veteran's competent lay statements regarding in-service dislocations of the right shoulder and symptoms since service. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Resolving reasonable doubt in favor of the Veteran, the right shoulder dislocations additionally were incurred in service. While service treatment records are silent for complaints of a right shoulder dislocation, as stated above, the Veteran is competent to report dislocations of the shoulder. See Jandreau, 492 F.3d, at 1376-77. Additionally, review of the March 1993 service treatment records show laxity and a step off of the AC joint bilaterally, which supports the Veteran's contentions that he had dislocations of the right shoulder in service. While the Veteran testified that he worked as a painter after service, there is no evidence of record of record that the Veteran sustained any other injury to the right shoulder post-service that was the start of the right shoulder dislocations. Therefore, the Board finds that the chronic right shoulder dislocations were incurred in service. Next, the Board finds that the Veteran has a current disability of bilateral osteoarthritis (arthritis) of the shoulders, and the evidence is at least in equipoise regarding whether the Veteran experienced continuous symptoms of pain since service separation. As stated above, the Veteran testified that he has experienced painful shoulders since service separation. The Veteran testified that while he had symptoms of chronic bilateral shoulder pain since service, he did not seek treatment because he was young and thought he could "handle it." See October 2012 Board hearing transcript. Pain is capable of lay observation. See Layno, 6 Vet. App. at 470. While the Veteran did not seek treatment for the bilateral shoulder pain until approximately 2008, the absence of contemporaneous medical evidence, while one factor in determining credibility of lay evidence, does not alone demonstrate that the lay evidence lacks credibility. 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). Therefore, the Board finds that the symptoms of bilateral shoulder pain have been continuous since service separation. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the chronic bilateral shoulder dislocations were "incurred in" service, and based on continuous post-service symptoms, presumptive service connection for bilateral shoulder osteoarthritis is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The grant of direct and presumptive service connection renders moot all other theories of service connection. ORDER Service connection for left shoulder chronic dislocations with osteoarthritis is granted. Service connection for right shoulder chronic dislocations with osteoarthritis is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs