Citation Nr: 18142205 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-05 624 DATE: October 15, 2018 ORDER Service connection for a left shoulder disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a left shoulder disability due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from November 1973 through November 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a left shoulder disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an 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 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s 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 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he is entitled to service connection for left shoulder strain that onset during active service. He has a current disability of a left shoulder strain. See e.g., July 2015 Primary Care Physician Note. The Veteran was also diagnosed with a left shoulder strain in service. See, October 1975 Chronological Record of Medical Care. While the Veteran has a current diagnosis of left shoulder strain, and evidence shows that in-service injury, event, or disease occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left shoulder strain began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran indicated on his report of medical examination at separation that he did not have nor did he ever have painful or “trick” shoulder or elbow. See October 1976 Report of Medical Examination. He also indicated that his upper extremities were normal and no significant abnormalities were noted. Id. These medical records are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). VA treatment records show the Veteran was not diagnosed with a “frozen shoulder” until July 1981, years after his separation from service. See July 1981 Veterans Administration Medical Certificate. While the Veteran believes his current left-shoulder strain is related to an in-service injury, event, or disease, including a claimed fall in service, which dislocated his left shoulder, he is not competent to provide a nexus opinion in this case. The Veteran submitted lay statements from two friends that have known the Veteran for a significant period. While these individuals believe the Veteran’s left shoulder strain is related to an in-service injury, event, or disease, including a fall he incurred while serving in the Army, they are not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). A November 2011 VA examiner opined that the Veteran’s left shoulder strain is less likely than not incurred in or caused by the claimed in-service injury, event, or illness, including the October 1975 fall. The examiner noted that there is no evidence of complaints of chronicity of care of the shoulder. Also, the Veteran did not complain of a left shoulder condition when establishing himself as a new patient on March 24, 2010, but rather the right shoulder. He had been previously scheduled for an examination at the VAMC in Cincinnati on September 17, 1998, but failed to appear. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The January 2013 VA examiner opined that the Veteran’s left shoulder strain is less likely than not incurred in or caused by the claimed in-service injury. As there is no competent and credible evidence of a link between the Veteran’s service and his left shoulder strain, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, service connection for the Veteran’s left shoulder disability is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel