Citation Nr: 1806448 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-35 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for right shoulder disability, including as secondary to service-connected residual neuropathy with limitation of motion of nonunion scaphoid bone fracture, right wrist, postoperative (dominant). REPRESENTATION Veteran represented by: Adam Neidenberg, Attorney ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1975 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction was subsequently transferred to the Waco, Texas RO. The Veteran was scheduled for a December 2017 Board videoconference hearing; however, in November 2017 correspondence he requested to withdraw his hearing request. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's current right shoulder disability is etiologically related to his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The Board grants the Veteran's claim for service connection for a right shoulder disability, which represents a complete grant of the benefits sought on appeal. As such, no discussion of VA's duty to notify or assist is necessary. II. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A finding of secondary service connection requires competent and credible evidence connecting the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. § 5107(b). 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). The Veteran has claimed entitlement to service connection for a right shoulder disability on either a direct basis, as related to his active service, or a secondary basis, as due to his service-connected residual neuropathy with limitation of motion of nonunion scaphoid bone fracture, right wrist. The Veteran has been diagnosed with right shoulder rotator cuff tear with impingement syndrome and acromioclavicular joint arthritis and therefore has met the first element of direct service connection. He also underwent surgery to repair a torn right shoulder labrum in January 2012. The Veteran's service treatment records reflect September 1976 treatment for a right shoulder injury. The Veteran stated that he injured his shoulder playing basketball. The physician noted mild swelling and tenderness over the posterior deltoid fibres and diagnosed a rupture of the fibres of the deltoid. X-rays of both shoulders and scapulae were scheduled and the Veteran was treated with rest, heat, and a sling. In October 1978, the Veteran again complained that he pulled his shoulder. Right shoulder anterior deltoid tenderness was noted, and a right shoulder strain was diagnosed. The Veteran's separation examination notes a painful right shoulder from 1978 that the Veteran stated still had occasional pain. Therefore, the second element of direct service connection has been met. The Veteran's daughters submitted statements in January and February 2012 attesting to the Veteran's complaints of ongoing shoulder pain in the years following his separation from service. The Veteran testified at a DRO hearing in August 2014 that he had never had any problems with his right shoulder prior to entering service. He stated that he fell while playing basketball in service and broke his right wrist and injured his right shoulder. He had surgery on his right wrist and was told that the physicians would look at his right shoulder after treating his wrist. The Veteran stated that he was given an ice pack for his right shoulder and it was wrapped up with an Ace bandage. No x-rays, MRIs or CT scans were performed. The Veteran also testified that there were no other injuries to his right shoulder after his separation from service. The Veteran's service treatment records confirm treatment for a fractured wrist but treatment of a contemporaneous shoulder injury was not documented. The Board finds that the Veteran is both competent and credible to report his shoulder pain as well as the circumstances of his service, and there is no evidence which contradicts his report. The Veteran, as a layperson, may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board further finds that the Veteran is competent to testify to the presence of his right shoulder pain and his daughters are competent to testify to the Veteran's reported complaints of right shoulder pain following his separation from active duty. The Veteran was afforded a VA joint examination in July 2008. The examiner noted that the Veteran fractured his wrist in-service in 1975 while playing basketball. The Veteran described difficulty with his shoulder dating to 2005 and stated that his shoulder popped with movement. Impingement of the right shoulder with shoulder pain, decreased range of motion, moderate disability with progression was diagnosed. The examiner opined that it was less likely than not that the right shoulder condition was secondary to the service-connected right wrist disability because "disease[s] or problem[s] of one joint does not cause difficulty with another joint." The examiner did not provide an opinion as to a nexus between the Veteran's active service and his current right shoulder disability. The Veteran underwent a second VA examination for his service-connected right wrist disability in June 2011. The examiner opined that the right shoulder strain that the Veteran suffered on active duty was not a causative factor in his current right shoulder condition, nor was the right shoulder injury secondary to the in-service right wrist injury. Instead, it was more likely than not that the Veteran's right shoulder condition was related to the effects of aging and musculoskeletal deconditioning due to physical inactivity. Also of record is a November 2017 private medical opinion from a private physician, Dr. T.R.C. Dr. T.R.C. opined that it was at least as likely as not that the Veteran's currently diagnosed right rotator cuff tear with impingement and acroclavicular joint arthritis are directly related to his military service. She stated that rotator cuff tears are often asymptomatic or mildly symptomatic for many years prior to clinical diagnosis, as was the case with the Veteran's progression of symptoms, and are commonly caused by a fall onto an outstretched arm like the Veteran's 1975 in-service injury. Dr. T.R.C. disputed the June 2011 VA examiner's finding that the Veteran's right shoulder condition was not caused by the minor in-service right shoulder injury but was rather the result of aging and musculoskeletal deconditioning due to physical inactivity. First, she stated that the Veteran's in-service shoulder injury included a partial tear of the deltoid muscle, "which is not a common or routine minor injury." She also stated that the contention regarding aging and deconditioning failed to consider the reported continuity of symptomatology and separation examination documenting ongoing shoulder pain. The Board finds both the June 2011 and November 2017 opinions adequate because both clinicians considered the relevant history of the Veteran's claimed disability and provided analysis to support their opinions concerning the etiology of the disability. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). After considering the relative probative weight of these two opinion, the Board finds the competent evidence of record is in a state of relative equipoise regarding whether the Veteran's current right shoulder disability is etiologically related to his period of active service. In light of the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence is sufficient to support a grant of service connection. Accordingly, the Board finds that service connection for a right shoulder disability is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a right shoulder disability is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs