Citation Nr: 1802033	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  10-45 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for a left knee disability.

2.  Entitlement to service connection for a right shoulder disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel
INTRODUCTION

The Veteran served on active duty in the United States Coast Guard from May 1978 to June 2008.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, denied the current appellate claims.

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2017.  A transcript of that hearing is of record.


FINDINGS OF FACT

1.  The record reflects the Veteran had X-ray evidence of left knee arthritis within one year of his separation from service.

2.  The competent and credible evidence of record reflects the Veteran developed chronic right shoulder strain as a result of his active service.


CONCLUSIONS OF LAW

1.  The criteria for a grant of service connection for left knee arthritis are met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

2.  The criteria for a grant of service connection for chronic right shoulder strain are met.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

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.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  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).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  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.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In this case, the Veteran essentially contends, to include at his July 2017 hearing, that he developed recurrent left knee and right shoulder pain while on active duty.  The Board finds he is competent to describe such symptomatology, and that his testimony on these matters is credible.  

The Board also notes that the Veteran's service treatment records reflect he had in-service complaints of right shoulder pain, to include in February 1998, October 2002, December 2002, April 2004, May 2004, and June 2004; as well as left and/or bilateral knee problems, to include in July 1996, August 1996, April 1997, and May 1997.  He also indicated shoulder and knee problems on Reports of Medical History in September 2002 and June 2007.

The Board further notes that a December 2008 VA examination noted that X-rays revealed mild arthritis of both knees.  Service connection may be established on a presumptive basis for certain chronic diseases such as arthritis that are present to a compensable degree within the first post-service year.  See 38 C.F.R. §§ 3.307, 3.309(a).  As the Veteran has competently and credibly reported recurrent left knee pain since service, it appears he satisfies the criteria for at least a compensable rating of 10 percent.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003-5010; see also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Mitchell v. Shinseki, 25 Vet. App. 32, 39 (2011).  Therefore, service connection is warranted pursuant to these presumptive provisions.

Although the Veteran was diagnosed with right shoulder strain and not arthritis at the December 2008 VA examination, he has still provided competent and credible evidence of recurrent right should pain since service.  This is of particular significance in this case as the Veteran sought treatment for such complaints while on active duty, and filed his claim for benefits within the first post-service year.  Further, the law mandates resolving all reasonable doubt in favor of the Veteran, to include issues of service origin.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Alemany v. Brown, 9 Vet. App. 518 (1996), the Cour noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology."  Therefore, the Board finds that service connection is also warranted for right shoulder strain.


ORDER

Service connection for left knee arthritis is granted.

Service connection for chronic right shoulder strain is granted.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs