Citation Nr: 1815406 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 13-12 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right shoulder disorder, to include degenerative joint disease of the right humerus with rotator cuff tendinitis. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1980. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the undersigned and a second Veterans Law Judge both took testimony with regard to the issues listed on the title page. However, a transcript of the earlier May 2016 hearing was unable to be reproduced due to error in the Digital Audio Recording System. The Veteran was informed of this error and chose to appear at another hearing before the undersigned Veterans Law Judge in December 2017. The Board notes that while consideration was consequently given as to whether a panel decision was warranted in this matter, given that no evidence exists from the May 2016 hearing and that none of the evidence from the hearing was used in adjudicating the claim, the Board finds that a single judge decision is sufficient, especially given the favorable outcome decided below. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence is at least in equipoise as to whether the Veteran's right shoulder disorder is etiologically related to his service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a right shoulder disorder, to include degenerative joint disease of the right humerus with rotator cuff tendinitis, are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As the Board's decision below represents a complete grant of the benefits sought on appeal, namely granting entitlement to service connection for a right shoulder disorder, discussion of the Duties to Notify and Assist is not required. II. Service Connection The Veteran seeks service connection for a right shoulder disorder. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting from disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). In rendering a decision on 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 evidence 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Barr v. Nicholson, 21 Vet. App. at 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Notwithstanding the above, however, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). Lay evidence can be considered competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 at 1376-77. Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. at 1376-77. The Veteran was seen in-service for an injury to his right shoulder that happened while he was playing football. The December 1978 service treatment record (STR) indicates that the Veteran injured his shoulder playing football the previous day and he was diagnosed with shoulder strain. At the December 2017 hearing, the Veteran testified that he dislocated his shoulder while playing football. He reported that his shoulder was popped back into the socket at the football game before he was seen by doctors at the base. Further, the October 2010 VA examiner diagnosed the Veteran with right subacromial bursitis and Dr. B.D. diagnosed the Veteran with degenerative joint disease of the right humerus with rotator cuff tendonitis in August 2011. Thus, there is evidence of an in-service event or injury and a current diagnosis, and the only remaining element to establish service connection is competent evidence of a nexus between the two. While the October 2010 VA examiner found that there was no such nexus, the VA examiner also did not note that the Veteran's shoulder was dislocated playing football. Instead, the VA examiner noted the Veteran's in-service shoulder "sprain" and concluded that the fairly minor contusion to the right shoulder 30 years prior was not related to his current diagnosis. The Board has no reason to doubt the credibility of the Veteran's testimony that his in-service injury to his shoulder was a dislocation and not a strain. Further, dislocating a shoulder is just the type of injury that a lay person is competent to identify. Jandreau, 492 F.3d at 1376-77. Because it appears that the October 2010 VA examiner's opinion was based on an inaccurate factual premise, the Board places limited weight on the examiner's opinion. However, the record also includes an August 2011 treatment note from Dr. B.D., an orthopedic surgeon. Dr. B.D. noted the Veteran's in-service shoulder dislocation, noted the Veteran had significant posterior glenoid and posterior humeral head wear, and opined that the Veteran's current injury is consistent with late effects of the in-service injury. Dr. B.D. noted that the in-service injury would explain the focal wear in the Veteran's right shoulder and recommended physical therapy. This competent, credible opinion based on an accurate factual history provides evidence of a nexus between the Veteran's in-service shoulder dislocation and his later development of a right shoulder disability, to include degenerative joint disease of the right humerus with rotator cuff tendinitis. Resolving reasonable doubt in the Veteran's favor, the evidence is at least in relative equipoise and the Veteran's claim must be granted. See Gilbert, 1 Vet. App. at 49. ORDER Entitlement to service connection for a right shoulder disorder, to include degenerative joint disease of the right humerus with rotator cuff tendinitis, is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs