Citation Nr: 20006330 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 16-53 181 DATE: January 28, 2020 ORDER Entitlement to service connection for left shoulder disability is granted. Entitlement to service connection for right shoulder disability is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his left shoulder disability is at least as likely as not related to an in-service injury, event, or disease. 2. Resolving reasonable doubt in the Veteran’s favor, his right shoulder disability is at least as likely as not related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left shoulder disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right shoulder disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to November 1990. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in San Diego, California. In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearings is of record. Service Connection Under applicable law, 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 active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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 at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases 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; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. Once the evidence has been assembled, it is the Board’s responsibility to determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. 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 lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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 Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for left shoulder disability. 2. Entitlement to service connection for right shoulder disability. The Veteran contends that his current left and right shoulder disabilities are related to an in-service motorcycle accident in June 1983. The Board concludes that the Veteran has a current disability that is related to his in-service injuries resulting from a motorcycle accident. 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). Private treatment records show the Veteran has current diagnoses of left shoulder pain and labral tear, with a history of arthroscopic subacromial decompression, Mumford procedure, and glenoid labral tear debridement. The Veteran also has current diagnosis of right shoulder supraspinatus tendinosis without rotator cuff tear and acromioclavicular joint degenerative changes with inferior spur resulting in impingement. VA treatment records also indicate complaints and treatment for bilateral shoulder pain. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a February 2018 VA examination. The VA examiner opined that the Veteran’s bilateral shoulder disabilities are not at least as likely as not related to an in-service injury, event, or disease, including the claimed in-service motorcycle accident. The VA examiner opined that Medical records are silent as to symptoms related to claimed condition during time of service. Besides lay statements, no other record of the motorcycle accident is documented in the records. Although claimant may have a current diagnosis relating to claimed medical condition, it is my clinical opinion that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s opinion is inadequate as it is largely based on the lack of medical documentation, although the Veteran’s service treatment records indicate that he reported two motor vehicle accidents in service. Additionally, the VA opinion did not consider the other evidence of record to include lay reports of persistent shoulder pain in service. The evidence in favor of the claim includes a private medical opinion from Dr. G.T., the Veteran’s orthopedic surgeon. Dr. G.T. stated that the Veteran has had “persistent bilateral shoulder pain since (the accident) that required the aforementioned surgical intervention on the left shoulder and, thus far, conservative treatment for his right shoulder condition.” The Veteran’s treating orthopedic surgeon opined that As an orthopedic surgeon, that with reasonable medical probability that the motorcycle accident that took place in June or July 1983…was the contributing mechanism for his bilateral shoulder pain and progression of pain over time. The Board affords this opinion significant probative value. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the private medical opinion was provided by a medical expert in orthopedic medicine who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is also shown to have been based on a review of the Veteran’s treatment history and is accompanied by a sufficient explanation as to why the Veteran’s bilateral shoulder condition is related to his in-service motorcycle accident. By contrast, the VA opinion was provided by a physician assistant who does not have the level of expertise of the private orthopedic surgeon. The Board thus places more probative weight on the private medical opinion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral shoulder disabilities is related to his motorcycle accident in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for left and right shoulder disabilities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. T. Mainelli Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.