Citation Nr: 1824802 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 10-00 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Fales, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to December 1971. He served honorably in the United States Army, including in combat in Vietnam. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Jurisdiction is now with the RO in Cleveland, Ohio. This matter was previously before the Board in September 2016, when it was remanded for further development to obtain additional medical records. There has been substantial compliance with the prior remand. FINDING OF FACT The Veteran's degenerative joint disease of the bilateral shoulders is associated with his active duty service. CONCLUSION OF LAW The criteria for service connection for degenerative joint disease of the bilateral shoulders have been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Direct service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For certain "chronic diseases," like arthritis (degenerative joint disease), presumptive service connection is available. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is shown as such during service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, then subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). On the other hand, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. See id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the chronic disease became manifest to a degree of 10 percent within 1 year from date of termination of 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. See 38 C.F.R. § 3.307. The term "chronic disease," whether shown as such during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis Here, the Board finds that the Veteran has a current disability. A November 2013 VA physical therapy record included a radiology report reflecting mild degenerative change in the AC joint of the right shoulder. During the pendency of this claim VA clinicians have consistently assessed the Veteran with bilateral shoulder degenerative joint disease (DJD). Accordingly, the first element of direct service connection has been met. The Board also finds that the Veteran served in Vietnam and during the course of his service he was injured in an explosion. Specifically, he has contended that one night he was walking near the showers when he heard a blast and his next memory was lying on the ground where he had fallen two stories from the deck of the shower building. The Board finds the Veteran's account credible as to in-service incurrence because he has been consistent and it is in keeping with the circumstances of his service. What is more, it is in connection with this event that the Board previously granted service connection for cervical and lumbar spine disabilities in September 2016. Accordingly, the second element of direct service connection has been met. Turning to the question of whether there is a nexus, or link, between the current shown disability and service, the Board concludes that the evidence favors a finding that the Veteran's bilateral shoulder DJD is related to a bilateral shoulder injury in service. The evidence of record, such as a VA examination report from October 2009, shows that the Veteran maintains that his bilateral shoulder disability, manifested by symptoms to include pain, began with the explosion in Vietnam. During the April 2016 videoconference Board hearing, the Veteran testified that after the explosion he received physical therapy treatment in service for the "combination" of his injuries, to include his shoulders. His service treatment records show that in November 1971 he was treated for his posture. In addition, on his separation medical evaluation form, the Veteran selected the option indicating "painful joints." Subsequently, the evidence of record shows continuous reports of pain, to include a VA examination report from April 1981 and letters to VA in May 1994 and March 2003. In a VA examination report from November 2005, current and longstanding bilateral shoulder pain was noted but in the Veteran's service connection claim the following month he called it a back and neck condition. The Board observes that the record is replete with examples of the Veteran's back disability being used to encompass associated conditions, to include his shoulders. The Board concludes that this evidence shows a continuity of symptoms since discharge. Further, an October 2006 statement from a VA physician indicated that the Veteran's degenerative joint disease of the bilateral shoulders is related to his two-story fall in service during combat. What is more, in July 2007 a VA physician indicated that there is a relationship between the Veteran's fall during the explosion and pain and intermittent spasms in his upper extremities. A September 2007 statement from a VA physician also related the Veteran's degenerative joint disease to the trauma (thrown bodily in an explosion in Vietnam) in service. The Board finds these opinions probative as they demonstrate a familiarity with the medical evidence of record and the circumstances of the Veteran's service. By contrast, an October 2009 VA examiner opined that there was not a nexus in this case because "joint degeneration is a natural process that is often found in subjects that belong to this veteran['s] age group." The Board finds this opinion inadequate because it is nonresponsive to the question about the relationship between this Veteran's shoulder condition and the explosion he experienced in Vietnam. Accordingly, the Board finds that this opinion is not probative and affords it no weight. Last, the Board finds that the claimed etiology of the Veteran's shoulder disability is consistent with the etiology of his already service connected back conditions and the circumstances of his service; namely, that when he fell two stories due to an explosion in Vietnam he injured his shoulders in addition to his back when he landed unconscious on the ground. In sum, the Board concludes that the evidence favors a finding that DJD of the bilateral shoulders was incurred in service. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for a bilateral shoulder disability have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. See 38 U.S.C. 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Service connection for DJD of the bilateral shoulders is granted. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs