Citation Nr: 18100930 Decision Date: 04/24/18 Archive Date: 04/24/18 DOCKET NO. 14-35 050A DATE: April 24, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 0 ORDER Entitlement to service connection for a left shoulder disability is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, the Veteran’s current left shoulder disability was related to service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1970 to September 1972. In June 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. Service connection for left shoulder degenerative joint disease (DJD) The Board concludes that the Veteran has a current diagnosis of left shoulder DJD that is related to his service. 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). 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). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis, also diagnosed as degenerative joint disease, is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as DJD, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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 is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about 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 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 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). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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). December 2011 VA treatment records indicate the Veteran was diagnosed with moderate degenerative joint disease of the left shoulder after x-rays. The Veteran’s February 1970 report of medical history prior to induction indicates he reported a symptomatic left shoulder condition. At the February 1970 report of medical examination, however, the examiner noted infected tonsils and second degree pes planus as pre-existing conditions, indicating the Veteran was qualified for commission, noting only an upper left extremity defect. In May 1972, the Veteran reported continuous mild left shoulder discomfort after exercising. During the examination, the Veteran reported a left shoulder injury in 1968 that caused pain but that did not result in any formal diagnosis. The examiner noted mild discomfort to palpation at the joint, with no evidence of swelling. The examiner diagnosed the Veteran with left shoulder joint pain and probable traumatic osteoarthritis. Records indicate after contemporaneous x-rays were taken, the shoulder was diagnosed as “ok” with no further explanation. An endocrinology consultation revealed that a possible hyperparathyroidism assessment, to further evaluate complaints of bone pain, was likely due to an error in the lab results. The Veteran’s September 1972 report of medical history at discharge indicates he reported a left shoulder injury during physical training (PT) resulting in a loss of range of motion (ROM). His September 1972 report of medical examination indicated a clinically normal upper extremities evaluation. In May 2006, the Veteran obtained an opinion from a private physician who indicated that, after review of the Veteran’s service treatment and post-service medical records, the Veteran’s bilateral shoulder arthritis disability was caused by trauma sustained on active duty. In February 2012, the Veteran’s treating chiropractor opined the Veteran’s current left shoulder arthritis was caused by trauma sustained in service. The examiner indicated he reviewed the Veteran’s service treatment records, and noted the reported osteoarthritis diagnosis was a “possible” early indicator of trauma-induced damage. At an October 2012 VA medical examination, the examiner reported he was unable to opine as to whether the Veteran’s in-service complaints were related to his current diagnosis without resorting to speculation. The examiner noted that the Veteran reported a symptomatic left shoulder at his induction examination, but no further evidence or diagnosis indicated the Veteran had a pre-existing left shoulder condition. In addition, the medical evidence developed after the Veteran’s May 1972 complaint did not provide detailed findings, nor indicate an arthritis diagnosis. In December 2012, the Veteran obtained a medical opinion from an orthopedic physician who indicated that, after review of the Veteran’s service treatment and post-service medical records, the Veteran’s in-service injuries developed into posttraumatic arthritis. The examiner noted that the Veteran’s post-service medical history contained no reference to a shoulder injury, and that this indicated a posttraumatic arthritis diagnosis was more likely due to an untreated injury rather than due to age. The medical evidence regarding a nexus to service is in relative equipoise. All four examiners reviewed the Veteran’s service treatment and post-service medical records, provided fact-based explanations for their conclusions, and acknowledged the Veteran’s lay statements regarding the onset and frequency of symptoms and the circumstances of his military service. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Resolving reasonable doubt in the Veteran’s favor, the claim for service connection for a left shoulder disability is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel