Citation Nr: 1800616 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-14 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a left shoulder condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. On his March 2014 Substantive Appeal, VA Form 9, the Veteran indicated he wished to have a Board hearing. However, in February 2016, the Veteran withdrew his request for a hearing in writing. FINDING OF FACT The Veteran's left shoulder disability, to include left upper trunk plexopathy, is related to service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability, to include left upper trunk plexopathy, have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Board is granting, in full, the benefit sought on appeal. Accordingly, any error with respect to either the duty to notify or the duty to assist was harmless and need not be further considered. Service Connection Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show: "(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 or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition); see also Leshore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional.) A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board recognizes that the Court has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the disease resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is considered competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Left Shoulder Disability In May 1972, the Veteran received a VA neurological examination and indicated he sought treatment for his left arm weakness in 1969. At that time, the Veteran stated that his doctors said he had polio as a child; the Veteran, however, did not remember having it. As a result of the examination, the examiner indicated that the Veteran had a motor impairment of the left upper extremities, most probably the result of early polio. The Veteran received private treatment in October 1972 and the physician noted that the Veteran was informed he possibly had polio. However, the Veteran could only remember having discomfort and paresthesia in his arm at that time. He gave no history of a period of severe, bitter shoulder pain. The physician found that the Veteran did not have an upper respiratory infection, gastroenteritis, or anything else that would suggest polio. He indicated that, instead of having polio, the Veteran probably had a viral brachial plexitis, and had been left with some residuals. The Veteran received private treatment in January 2012 for, amongst other things, the Veteran's left-sided upper body weakness. The physician indicated that he had been diagnosed with left-sided brachial plexopathy in the past, and had been evaluated for his rotator cuff problems. The Veteran stated that, during service, he was carrying his 30 pound radio on his neck and shoulders, and his regular armament which weighed about 45 to 50 pounds. He thought that his injuries were related to carrying the radio and armament, and jumping from helicopters. An MRI of the left shoulder showed mild tenosynovitis of the bicep tendon, mild osteoarthritis of the AC joint and tendinosis of the supraspinatus tendon. However, no tear was noted. There was severe atrophy of the supraspinatus muscles and mild atrophy of the infraspinatus muscles. The examiner indicated that these atrophic changes, without any rotator cuff tears, raised the suspicion of brachial plexus neuritis. The Veteran received private treatment for left shoulder weakness in April 2012. The physician noted atrophy in the shoulder girdle and deltoid which had been present since service where the Veteran was carrying a heavy pack with shoulder straps for many hours every day. On examination, the physician stated that electrodiagnostic testing was abnormal as it pertained to the supraspinatus, infraspinatus and deltoid. He found that the changes were chronic and indicative of left upper trunk plexopathy. The physician concluded that the Veteran's left shoulder weakness, atrophy and dysfunction were related to an upper trunk plexopathy that was likely caused by carrying a heavy pack while in service. The Veteran received counseling from a VA neurologist in August 2013, and discussed Rucksack Paralysis (aka Pack Palsy). The neurologist indicated that it was more likely than not that Pack Palsy was the cause of the Veteran's shoulder weakness. That same month, the January 2012 private physician submitted a statement indicating that he performed an EMG in April 2012 that revealed left upper trunk plexopathy with evidence of chronic denervation/renervation and deltoid supraspinatus and infraspinatus muscles on the left. He stated that the Veteran's condition was consistent with Rucksack Paralysis, which had been noted in individuals with similar experiences of carrying heavy packs for many hours a day. As a result, the physician again concluded that it was most likely that the Veteran's disability was a direct result of his military service. As noted above, unless there is clear and unmistakable evidence to the contrary, the VA must presume that the veteran was in sound condition except as to those defects, infirmities, or disorders noted at the time of his or her entrance into service. 38 U.S.C. §§ 1111, 1132 (2012); 38 C.F.R. § 3.304 (2017). The presumption of sound condition provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not detected. Where a report of service entrance examination is not of record, the Board must accord the veteran the presumption of soundness at service entry, absent clear and unmistakable evidence to the contrary. In this case, the Veteran's report of service entrance examination is not of record. Accordingly, there must be clear and unmistakable evidence that a left shoulder disorder preexisted service and was not aggravated during service, and the Board finds that there is no such evidence and that the Veteran is entitled to the presumption of soundness. Therefore, the Board's analysis must turn to the question of whether the Veteran currently suffers from a left shoulder disability and, if so, whether it began in or is otherwise due to his military service. In this regard, the Board finds that there is ample evidence that the Veteran suffers from a current left shoulder disability. He was noted to have left upper extremity atrophy as far back as 1972, and a received competent diagnosis of left upper trunk plexopathy. Furthermore, the Board notes that there is conflicting evidence with regards to the etiology of the Veteran's left shoulder disability. The Veteran has submitted competent and credible medical evidence indicating that his disability is related to the carrying of a heavy pack during service. There is also competent and credible evidence it is related to polio or viral brachial plexitis. As such, the Board finds that the evidence is in equipoise as to whether the Veteran's condition had its onset in service. Affording the Veteran the benefit of the doubt, service connection for a left shoulder disability, to include left upper trunk plexopathy, is therefore warranted. ORDER Service connection for a left shoulder disability, to include the Veteran's left upper trunk plexopathy, is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs