Citation Nr: 1800268 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-11 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to February 1979 and July 1989 to October 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The claim is now in the jurisdiction of the Atlanta, Georgia RO. In June 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is associated with the claims file. FINDING OF FACT The evidence is sufficient to show that the Veteran's right shoulder disability had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Moreover, pursuant to 38 C.F.R. § 3.309, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran asserts that his right shoulder injury had its onset in service and is a result of vigorous physical activity in service. See June 2017 Hearing Transcript. As the record shows multiple right shoulder diagnoses, the issue that remains disputed is whether the Veteran's current right shoulder disability had its onset in service or is otherwise related to service. See March 2013 VA Examination. The Veteran's service treatment records do not show complaints of or treatment for a right shoulder injury. However, the Veteran reported that he experience bilateral shoulder pain in service. See June 2017 Hearing Transcript. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The Veteran underwent magnetic resonance imaging (MRI) in January 2013 - approximately 3 months after separation. See Michigan Internal Medicine Records. The MRI results revealed the following: tendinosis and a small partial tear involving bursal surface fibers of the supraspinatus tendon at the site of the insertion into the greater tuberosity, tendinosis of the subscapularis tendon and long head biceps tendon, mild diffuse degenerative changes of the superior glenoid labrum, and moderate hypertrophic degenerative changes of the acromioclavicular joint with mass effect on the underlying myotendinous junction of the supraspinatus tendon. Id. The evidence also shows that the Veteran underwent surgery for the right shoulder in March 2013 - a mere 5 months after separation. The Veteran's preoperative diagnosis was right shoulder impingement syndrome and partial bursal sided rotator cuff tear. The Veteran was also afforded a VA examination in March 2013. The examiner noted the Veteran had a diagnosis of bilateral rotator cuff tendinosis with partial tear by MRI. The examiner opined that the Veteran's right shoulder disability is not related to service because the Veteran's service treatment records are silent for complaints of or treatment for a right shoulder treatment. The Board finds the VA examiner's opinion incomplete as the medical examiner cannot solely rely on the absence of medical records corroborating in-service symptoms to conclude that there is no relationship between the Veteran's current disability and his military service. Dalton v. Nicholson, 12 Vet. App. 23, 40 (2007). In addition, the examiner did not seem to consider the Veteran's statements of the post treatment records indicating degenerative changes within months of separation. As such, the examination is afforded little probative value. In view of the evidence including the Veteran's competent testimony regarding the onset of his right shoulder symptoms, the degenerative changes in his right shoulder noted 3 months after separation, and the continuity of treatment within 5 months after service, the Board finds that the preponderance of the evidence indicates that the Veteran's right shoulder disability had its onset in service. Thus, service connection for a right shoulder disability is warranted. ORDER Entitlement to service connection for a right shoulder rotator cuff tendinosis with partial tear is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs