On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for degenerative arthritis
of the shoulders.
REPRESENTATION
Appellant represented by: Sean Kendall, Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant and [redacted]
ATTORNEY FOR THE BOARD
J. A. Markey, Counsel
INTRODUCTION
The veteran served on active duty from July 1981 to September
1992.
This matter came before the Board of Veterans' Appeals
(Board) from an April 1993 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Louisville,
Kentucky that denied the veteran's claim of entitlement to
service connection for degenerative arthritis of the
shoulders. A notice of disagreement was received in November
1993. A statement of the case was issued in March 1994. A
substantive appeal was received from the veteran in April
1994. A hearing was held before the undersigned Veterans Law
Judge at the RO in St. Petersburg, Florida in September 1996
(subsequent to the April 1993 decision, the veteran relocated
to Florida, and his file was transferred to this RO).
The Board, in a decision dated in November 1996, denied this
claim. Thereafter, the veteran appealed these matters to the
United States Court of Appeals for Veterans Claims
(hereinafter the Court). In January 1998, while the case was
pending, the veteran's attorney and VA's Office of General
Counsel filed a joint motion (Motion) requesting that the
Court vacate the Board's November 1996 decision and remand it
to the Board for further evidentiary development and
readjudication. In January 1998, the Court granted the
Motion, vacated the Board's November 1996 decision, and
remanded the case to the Board for compliance with directives
that were specified by the Court.
In September 1998, the Board remanded this matter to the RO
for further development and adjudication.
FINDINGS OF FACT
The evidence sufficiently demonstrates that the veteran has
degenerative arthritis of the shoulders attributable to
service.
CONCLUSION OF LAW
The veteran suffers from degenerative arthritis of the
shoulders that resulted from his service on active duty.
38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2000); 38 C.F.R.
§§ 3.303 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Applicable law provides that service connection will be
granted if it is shown a particular disease or injury
resulting in disability was incurred or aggravated during
active duty. If arthritis became manifest to a compensable
degree within one year of active duty it shall be considered
to have been incurred in that period of active duty.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991 &
Supp. 2000); 38 C.F.R. § 3.309 (1999). A "determination of
service connection requires a finding of the existence of a
current disability and a determination of a relationship
between that disability and an injury or disease incurred in
service." Watson v. Brown, 4 Vet. App. 309, 314 (1993).
As noted above, the veteran served on active duty from July
1981 to September 1992. April and June 1992 reports
(addendums) from the Army Medical Board indicate that X-rays
revealed some very mild degenerative changes involving both
acromioclavicular joints. The reports of VA examinations
dated in December 1992 and October 1999, which included X-
rays, were negative for such changes or for any type of
shoulder disability (a painful shoulder was "diagnosed" in
December 1992).
A independent medical evaluation was conducted, presumably at
the request of the veteran's representative, in October 2000.
The evaluation report from Craig N. Bash, M.D., a neuro-
radiologist, was received by the Board that same month along
with a waiver of initial agency of original jurisdiction
consideration. See 38 C.F.R. § 20.1304 (1999).
In this report, Dr. Bash initially points out that he
reviewed, among other things, the veteran's service medical
records, the post service medical record (to include the
October 1999 examination report), and X-ray reports and films
dated in February 1997 and October 1999. His impression was
that an inservice shoulder injury and acquired inservice
bilateral shoulder degenerative arthritis were causing the
veteran's current shoulder disability. Dr. Bash noted that
his review the February 1997 and October 1999 X-ray films
under a "Hot Light" in fact showed degenerative changes
involving both acromioclavicular joints, and that the
December 1992 X-ray report was "very likely wrong because
degenerative changes noted in Apr[il] 1992 could not have
gone away in Dec[ember] 1992 and reappeared in Feb[ruary]
1997 and Oct[ober] 1999." In the remainder of his report,
Dr. Bash went on to give additional reasons to discount the
findings made on VA examination in October 1999.
Taking into account the service medical records, the medical
report from Dr. Bash, and the applicable law, noted above,
the Board finds that, in resolving all doubt in the veteran's
favor, the evidence supports the veteran's claim for service
connection for degenerative arthritis of the shoulders. As
such, service connection for this disability is granted.
ORDER
Service connection for degenerative arthritis of the
shoulders is granted.
