Citation Nr: 1805872 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-07 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois 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 Veteran ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1966 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (CAVC). The matter was originally before the Board on appeal from a September 2008 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In March 2010, a hearing was held before a Decision Review Officer (DRO) at the RO, and in March 2013, a Travel Board hearing was held before the undersigned; transcripts of both hearings are associated with the record. In April 2014, the Board remanded the claim for additional development. A January 2015 Board decision, in pertinent part, denied service connection for a right shoulder disability. The Veteran appealed that determination to the CAVC. A November 2015 CAVC Order remanded the matter for compliance with instructions in a November 2015 Joint Motion for Partial Remand (JMPR) by the parties. In March 2016, the Board remanded the claim for additional development. Thereafter, in July 2017, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA), which was received in January 2018. FINDING OF FACT It is reasonably shown by competent evidence that the Veteran's variously diagnosed right shoulder disability is etiologically related to his activities in service. CONCLUSION OF LAW Service connection for a variously diagnosed right shoulder disability is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA applies to the instant claim. However, as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. Factual Background Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service treatment records (STRs) show that in November 1966 he was seen for complaints of left shoulder pain of two weeks' duration that began after he had been lifting weights and building bunkers . The impression was probable pulled muscle; he was assigned light duty for five days. In December 1966 he returned for a check of his left shoulder and reported that it was okay, with no more pain. On June 1974 private medical evaluation, the Veteran's upper extremities were noted normal with a full range of motion without pain. A May 2006 private treatment record notes right shoulder tendonitis was diagnosed when the Veteran was seen for right shoulder complaints. In December 2006, osteoarthritis was diagnosed based on X-ray results. A July 2007 VA treatment record notes the Veteran's right shoulder pain had lasted several years. In several statements received in March 2013, acquaintances of the Veteran reported he had related he injured his right shoulder in service and that they were aware of his continuing complaints of right shoulder pain since separation. In various statements and hearing testimony, the Veteran has asserted that the 1966 injury in service was actually to his right shoulder and that the 1966 STRs are in error as to which shoulder was treated. He stated that he continued to seek treatment in service, including while in Vietnam, and was provided pain medication, but that no records were kept of such treatment . He also reported that he sought VA treatment for right shoulder pain from 1970 until 1977, but that no records of such treatment could be located. A May 2013 VA treatment record notes an assessment of right shoulder impingement. On May 2014 VA examination, right shoulder strain was diagnosed. The examiner opined that the Veteran's right shoulder disability was unrelated to service because there was "no clearly documented continuum of care from service until now." In the November 2015 JMPR, the parties agreed that the May 2014 opinion was inadequate because it impermissibly relied solely on a lack of documented treatment. On June 2016 VA examination, right shoulder strain was diagnosed. The examiner was advised that a lack of documented treatment was insufficient rationale for a negative nexus opinion, but the negative nexus opinion provided was (again) premised on a lack of documented continuity of care, and the examiner did not comment on most of the evidence highlighted by the Board. In January 2018, a consulting VHA expert, an orthopedic surgeon at the Cheyenne, Wyoming VA Medical Center (VAMC), noted the medical evidence shows that the Veteran has right shoulder osteoarthritis and opined it was at least as likely as not that heavy labor performed and/or minor injuries sustained during active duty service contributed to the current right shoulder disability. The examiner summarized the medical and lay evidence in detail and explained that accepted medical thought holds that osteoarthritis can be the result of accumulated subclinical injury sustained over many years and that heavy labor can be a source of such injury. [The Board notes the examiner reported there had not been an adequate work-up to establish a reliable diagnosis to account for all of the Veteran's right shoulder symptoms, including possible instability.] Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). To substantiate a claim of service connection, there must be evidence of: a present disability (for which service connection is sought); incurrence or aggravation of a disease or injury in service; and a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis It is not in dispute that the Veteran now has a right shoulder disability. Private treatment records, VA treatment records, and the May 2014 and June 2014 VA examination reports show diagnoses of right shoulder osteoarthritis, impingement, and a strain. What he still must show to establish service connection for the variously diagnosed right shoulder disability is that such disability is etiologically related to his service. The May 2014 and June 2016 VA examiners opined the Veteran's right shoulder disability was not related to service based on a lack of documented continuity of care after he sought treatment for shoulder pain in November 1966. However, such opinions are inadequate because they impermissibly relied solely on a lack of documented care and did not address evidence highlighted by the Board. Accordingly, those opinions cannot be accorded any substantial value. The January 2018 VHA consulting expert, on the other hand, discussed the lay and medical evidence in detail and opined the right shoulder disability was related to labor he performed and/or injuries he sustained in service. As the opinion reflects familiarity with the record, and includes rationale with citation to supporting factual data, the Board finds it is highly probative evidence in the matter, and persuasive. Resolving any remaining reasonable doubt in the Veteran's favor (as required under 38 C.F.R. § 3.102), the Board concludes that service connection for the variously diagnosed right shoulder disability is warranted. ORDER Service connection for a variously diagnosed right shoulder disability is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs