DEPARTMENT OF VETERANS AFFAIRS
IN THE APPEAL OF DAVID APPERSON
REPRESENTED BY JOSEPH R MOORE, Attorney
DOCKET No. 09-09 767
DATE; March 1, 2019
Entitlement to service connection for a right shoulder disability is granted.
Entitlement to service connection for a left shoulder disability is granted.
FINDING OF FACT
The preponderance of the evidence supports the Veteran’s claim that his right and left shoulder disabilities are related to his active service.
CONCLUSION OF LAW
The criteria for service connection for right and left shoulder disabilities have been met. 38 USC 1112, 1113, 1131, 1154(b), 5107(b); 38 CFR 3.102, 3.303(b), 3.307, 3.309(a).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active military service from January 1977 to March 1979.
This matter was previously before the Board of Veterans’ Appeals (Board) on an appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the Board in December 2012, before the undersigned Veterans Law Judge. The Board denied the Veteran’s claim for service connection in December 2015.
Subsequently, the Veteran appealed the denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court/CAVC). In an October 2017 decision, the Court vacated the Board’s December 2015 decision and remanded the matter to the board for action consistent with the ruling. The claim is now once again before the Board.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 1131; 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a casual relationship (nexus) between the claimed in-service disease or injury and the present disability. See, eg, Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed Cir 2004).
The Veteran contends that he suffers from bilateral shoulder condition that is related to active service.
The Veteran’s service treatment records (STRs) reflect an instance of low back and paravertebral spasm, which led to a diagnosis of spondylolisthesis in May 1978. The Veteran has testified to suffering from a broken clavicle in service as well as being assaulted and hit in the head during service in 1977. See February 2019 Appellant’s Brief; May 2015 statement in support of claim; December 2012 Board hearing testimony; March 2009 buddy lay statement. The Veteran claims that these in-service injuries led to his present disability.
During the Veteran’s May 2015 VA examination, the examiner diagnosed the Veteran with a bilateral shoulder strain.
In January 2019, the Veteran submitted a private medical opinion supporting the Veteran’s claim that his bilateral shoulder disability is more likely than not due to active service. In the physician’s medical opinion, the Veteran’s treatment records cited as having been reviewed, key historical records were described, and a thorough rationale was provided.
Here, the Board finds that the private medical opinion submitted by the Veteran is both competent and credible, as it is based on the physician’s medical expertise and review of Veteran’s medical history, including VA examinations. Accordingly, the opinion is highly probative. The Veteran has provided credible testimony that he injured his collarbone, back, and head in service and that he has had post-service problems with shoulder pain since 2003. See December 2012 Board hearing testimony. As the preponderance of the evidence supports the Veteran’s claim that his present right and left shoulder disabilities are due to his active service, service connection is granted in full.’
Entitlement to service connection for a left shoulder disability is granted.
The preponderance of the evidence supports the Veteran’s claim that his right and left shoulder disabilities are related to his active service.
The criteria for service connection for right and left shoulder disabilities have been met. 38 USC 1112, 1113, 1131, 1154(b), 5107(b); 38 CFR 3.102, 3.303(b), 3.307, 3.309(a).
The Veteran had active military service from January 1977 to March 1979.
This matter was previously before the Board of Veterans’ Appeals (Board) on an appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the Board in December 2012, before the undersigned Veterans Law Judge. The Board denied the Veteran’s claim for service connection in December 2015.
Subsequently, the Veteran appealed the denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court/CAVC). In an October 2017 decision, the Court vacated the Board’s December 2015 decision and remanded the matter to the board for action consistent with the ruling. The claim is now once again before the Board.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 1131; 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a casual relationship (nexus) between the claimed in-service disease or injury and the present disability. See, eg, Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed Cir 2004).
The Veteran contends that he suffers from bilateral shoulder condition that is related to active service.
The Veteran’s service treatment records (STRs) reflect an instance of low back and paravertebral spasm, which led to a diagnosis of spondylolisthesis in May 1978. The Veteran has testified to suffering from a broken clavicle in service as well as being assaulted and hit in the head during service in 1977. See February 2019 Appellant’s Brief; May 2015 statement in support of claim; December 2012 Board hearing testimony; March 2009 buddy lay statement. The Veteran claims that these in-service injuries led to his present disability.
During the Veteran’s May 2015 VA examination, the examiner diagnosed the Veteran with a bilateral shoulder strain.
In January 2019, the Veteran submitted a private medical opinion supporting the Veteran’s claim that his bilateral shoulder disability is more likely than not due to active service. In the physician’s medical opinion, the Veteran’s treatment records cited as having been reviewed, key historical records were described, and a thorough rationale was provided.
Here, the Board finds that the private medical opinion submitted by the Veteran is both competent and credible, as it is based on the physician’s medical expertise and review of Veteran’s medical history, including VA examinations. Accordingly, the opinion is highly probative. The Veteran has provided credible testimony that he injured his collarbone, back, and head in service and that he has had post-service problems with shoulder pain since 2003. See December 2012 Board hearing testimony. As the preponderance of the evidence supports the Veteran’s claim that his present right and left shoulder disabilities are due to his active service, service connection is granted in full.’
Veterans Law Judge
Board of Veteran’s Appeals
ATTORNEY FOR THE BOARD
Evan Thomas Hicks
VA Disability Claim posted by David Apperson
