Citation Nr: 19159752 Decision Date: 08/01/19 Archive Date: 08/01/19 DOCKET NO. 1602203 DATE: August 1, 2019 ORDER Entitlement to service connection for a right shoulder disorder also claimed as neck disorder with limitation of motion of arm is granted. Entitlement to service connection for anxiety is dismissed. Entitlement to service connection for depression is dismissed. FINDINGS OF FACT 1. The Veteran’s right shoulder disorder also claimed as neck disorder with limitation of motion of arm began during active service. 2. Prior to promulgation of a decision in the appeal, the Veteran indicated in a February 2019 statement that he would like to withdraw his appeal regarding entitlement to service connection for anxiety. 3. Prior to promulgation of a decision in the appeal, the Veteran indicated in a February 2019 statement that he would like to withdraw his appeal regarding entitlement to service connection for depression. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disorder also claimed as neck disorder with limitation of motion of arm have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for withdrawal of the issue of entitlement to service connection for anxiety have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 3. The criteria for withdrawal of the issue of entitlement to service connection for depression have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2007 to December 2007 and from April 2009 to April 2010. The case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota. A hearing was scheduled before a Veteran’s Law Judge (VLJ) in May 2019. However, the Veteran’s representative contacted the Board prior to the hearing in in a letter dated May 10, 2019 that the Veteran would not be attending the hearing and requested the Board to render a decision based on the evidence of record. The Board observes that VA treatment records were associated with the claims file after the issuance of the latest Supplemental Statement of the Case (SSOC) in May 2016 in conjunction with the Veteran’s claim for a neck condition, including progress notes with a VA examination for a neck condition which reference the Veteran’s shoulder pain and previously considered VA records. However, an Informal Hearing Presentation (IHP) received by the Board in May 2019 from the Veteran’s representative notes that the Veteran’s representative carefully reviewed the evidence in the claims folder and requests the Board to render a decision. See May 2019 Informal Hearing Presentation. The Veteran’s representative also reiterated that the Board should render a decision based on the evidence of record in the aforementioned May 10, 2019 letter, while informing the Board that the Veteran would not be attending the scheduled hearing. Thus, the Board will assume jurisdiction over the claim of entitlement to service connection for a right shoulder condition also claimed as neck condition with limitation of motion of arm. Furthermore, the Board observes that the Veteran will not be prejudiced as the benefit sought herein is being granted. Withdrawn Issues In February 2019 and July 2019, prior to the promulgation of a decision in this appeal, written statements were received by the Veteran and his representative expressing a desire to withdraw the claims of service connection for anxiety and depression before the Board. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, the Veteran, through his representative has withdrawn his appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues and they are dismissed. Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a showing of 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. When the disease entity is established, there is no requirement of an evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that as an alternative to the nexus requirement, service connection for a chronic disease listed under 3.309(a) may be established through a showing of continuity of symptomatology since service). In each case where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, and the Veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the 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, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board.”). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for right shoulder disorder The Veteran contends that his shoulder disorder was caused in-service in March 2010 when he was serving in Iraq, while throwing a football. The Veteran adds that he experienced sudden severe pain in his right neck/shoulder and down the right arm. A review of the record shows that his claim for service connection for the right shoulder disorder was denied by the AOJ after an August 2014 VA examination showed no pathologic diagnosis for a shoulder condition. The Board observes that the Veteran filed a claim for a neck disorder in February 2019 after it was discovered that his shoulder pain was caused as a result of his neck being pinched, causing pain in his right shoulder. Thus, the formerly claimed shoulder condition which is now before the Board is currently diagnosed as a neck condition according to the claim filed by the Veteran before the AOJ in February 2019 and a review of recent VA treatment records. The RO denied service connection for the Veteran’s neck condition in a May 2019 rating decision based on the lack of complaints, treatment or diagnosis for the condition in-service. See May 2019 Rating Decision. A review of the VA treatment records and a May 2019 VA neck examination shows that the Veteran was diagnosed with cervical stenosis and degenerative arthritis of the spine after imaging conducted in September 2018 showed pinched nerves. The Veteran underwent neck surgery in January 2019. The Board therefore concedes that there is a current diagnosis for a condition found to have caused the Veteran’s shoulder/neck pain, although a specific diagnosis was not previously provided. Service treatment records (STRs) confirm the Veteran’s contention that he was seen for a right shoulder injury after throwing a football in March 2010, one month before separating from active service while he served in Iraq. The Veteran was seen again three months after separating from active service in July 2010 for severe shoulder pain. See May 2019 VA examination. Thus, the Board concedes that there was an in-service incurrence. Additionally, the Veteran submitted lay statements from his father, mother and wife regarding his shoulder condition after he returned from his Iraq deployment. The Veteran’s mother observed that he could not hug his wife after returning from Iraq in April 2010 due to shoulder pain. See May 2014 Lay Statement. In conclusion, the Board observes that there is now a diagnosis that may have caused the Veteran’s shoulder/neck pain, and the record shows that the Veteran has continuously maintained that he experiences shoulder/neck pain since the football accident in-service, which the service treatment records and VA treatment records support. Although the August 2014 VA examiner provided a negative nexus opinion, the Board assigns the August 2014 VA examination less weight as there is competent and credible medical evidence in the record, in addition to continuity of symptomology which shows that the Veteran’s condition was caused in-service. As the elements required to grant service connection have been met, entitlement to service connection for a right shoulder condition, also claimed as neck condition with limitation of motion of arm is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.