Citation Nr: 1750145 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 10-36 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for a stomach disorder, to include irritable bowel syndrome (IBS). 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran had active service from January 1997 to March 1997 and January 2003 to January 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that the Veteran has also perfected an appeal regarding the issues for an increased rating in excess of 60 percent for a lumbar spine disability and the denial to assign a separate evaluation for the right lower extremity radiculopathy disability. Board review of those issues is not appropriate at this time as the Veteran is still awaiting his requested hearing on those issues. See October 2017 VA Form 9. Those issues will be the subject of a later Board decision as appropriate. The issues of (1) service connection for a stomach disorder, to include IBS; and (2) entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is in equipoise as to whether the Veteran's currently diagnosed right shoulder disability had its onset during service. CONCLUSIONS OF LAW The criteria for service connection for a right shoulder disorder have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). The Veteran's right shoulder tendinitis is not considered a chronic disease therefore 38 C.F.R. § 3.303(b) is not for application here. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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. 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"). 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 claims file. See 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. See 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). 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 a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 . Service Connection Analysis for Right Shoulder Disorder Upon review, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's right shoulder disorder was incurred in service. The Veteran is currently diagnosed with as tendinitis in the right shoulder. Although service treatment records are negative for a diagnosis or treatment for a right shoulder disorder, the Veteran has competently and credibly indicated that he injured his shoulder after being hit by a rocket on base and blown through the air. Indeed, the Veteran's service-connected lumbar spine disability was granted based on this in-service injury. Further, the Board finds that the Veteran is competent to report symptoms that he perceived through his own senses, including the presence of shoulder pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the Veteran served in combat and his contentions are consistent with the circumstances, conditions and hardships of that service. 38 U.S.C.A. § 1154 (b). As such, the Board must presume the occurrence of the in-service injuries. The Veteran has also consistently reported persistent symptoms of shoulder pain since service. For example, in his August 2008 claim for VA compensation benefits, the Veteran reported that he injured his right shoulder in Asadabad in 2004. In a March 2008 VA treatment record, the Veteran complained of right shoulder pain, but x-rays were normal. In a January 2009 VA treatment record, it was noted that the Veteran had shoulder pain. In an October 2009 VA orthopedic consult note, the Veteran reported chronic bilateral shoulder pain for 4 years (i. e., 2005). At that time, he indicated that he injured his low back and right shoulder in July 2005 and the pain persisted. The Veteran was diagnosed with bilateral shoulder tendinitis. In a March 2017 VA treatment record, the VA physician stated that the Veteran had "sustained multiple injuries in the military resulting in chronic back pain and shoulder pain." In a July 2017 VA treatment record, the Veteran stated that he struggled with severe back and shoulder pain "from his time in the military." In a separate July 2017 VA treatment record, the VA physician indicated that the Veteran's "chronic pain in his back and right shoulder from combat injuries continue to be an issue." Based on the above, the Board finds that the evidence is at least in equipoise on the question of whether there was onset of symptoms of a right shoulder disorder in service and since service separation. The finding that the Veteran has had right shoulder symptoms since service is supportive of the direct service connection theory of the claim overall because it tends to show that the symptoms that began in service were the basis for the same symptoms after service separation. For these reasons, and after resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right shoulder disorder, diagnosed as tendinitis, was incurred in service. As such, service connection is warranted. 38 C.F.R. § 3.102. ORDER Service connection for a right shoulder disorder, diagnosed as tendinitis, is granted. REMAND Further evidentiary development is necessary as it pertains to the Veteran's claimed IBS disorder, as described below. In a January 2011 VA gastroenterology treatment record, the Veteran reported having chronic diarrhea since his service in Afghanistan. After performing a physical examination, the VA physician indicated that the Veteran had chronic diarrhea and that he "may have irritable bowel syndrome," but should be ruled out for other causes of diarrhea. Subsequent VA treatment records do not show a confirmed diagnosis of IBS or other stomach conditions. However, in light of the current stomach complaints and the complaints of having had diarrhea since serving in Afghanistan, a VA examination is warranted to assist in determining the nature and etiology of the Veteran's claimed stomach disorder. Finally, the TDIU claim is inextricably intertwined with the Board's grant of service connection for a right shoulder disability in this decision and the pending assignment of its corresponding rating percentage by the AOJ. Consideration of the TDIU must be deferred pending implementation of the award granted herein. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any relevant and outstanding VA treatment records. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his stomach disorder, claimed as IBS. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner is asked to respond to each of the following: (a) Indicate whether the Veteran has any current stomach disability, including IBS. (b) If a stomach disorder is present, indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's stomach disorder was incurred in service or is otherwise related to service, to include his reports of having had diarrhea since Afghanistan service. A complete rationale should be provided. 3. After conducting all other development deemed necessary, readjudicate the issues of service connection for a stomach disorder, to include IBS, and the claim for entitlement to a TDIU. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs