Citation Nr: 1804906 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-14 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a right shoulder condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sangster, Counsel INTRODUCTION The Veteran served on active duty from June 1997 to June 2001. He also had active duty for training (ACDUTRA) from July 27, 2007 to March 23, 2008, from August 22, 2011 to April 16, 2012 and from May 24, 2012 to January 24, 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran appeared at a hearing before the undersigned in June 2015. A transcript of the hearing is of record. FINDING OF FACT The Veteran's right shoulder condition, which pre-existed service, was aggravated beyond a natural progression by his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder condition are met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran believes that his right shoulder condition was aggravated beyond a natural progression by his active duty. The Board agrees. A Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Here, the Veteran's service treatment records (STRs) show that a clinical evaluation of his right shoulder was normal at the June 1996 enlistment examination. However, it was updated in June 1997 with a notation that the Veteran had injured his shoulder in April 1997 and had pain in the right shoulder. During the course of this appeal, the Veteran has acknowledged that he experienced a shoulder disability prior to his entry to service. However, at the time he entered service, his shoulder disability was not readily observable upon examination and he was evidently able to perform all aspects of regular duty prior to November 1997, when the medical record reflects his complaints of repeated dislocations of his right shoulder and pain, especially when doing push-ups. At a follow-up appointment in November 1997, the Veteran reported that he had dislocated his right shoulder again. In 1998, the Veteran required surgery for recurrent right shoulder instability. Although he subsequently participated in physical therapy, he thereafter needed to seek ongoing treatment and physical therapy for his right shoulder. Notably, the Veteran had surgery again on his right shoulder in March 2007. In January 2014, a VA examiner noted that the Veteran's right shoulder condition pre-existed service and opined that it was not aggravated beyond its natural progression by an in-service event, injury or illness. However, the examiner erroneously noted that there was no in-service injury to the Veteran's right shoulder and did not identify clear and unmistakable (obvious or manifest) evidence that the right shoulder was not aggravated by service, as required by 38 C.F.R. § 3.304(b). While the findings of a physician are medical conclusions that the Board cannot ignore or disregard, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). The evidence of record in this case simply does not support a determination that there was clear and unmistakable evidence that the Veteran's pre-existing right shoulder disability was not aggravated by service. Instead, the evidence reflects that his pre-existing shoulder disability was asymptomatic at the time he entered service and then worsened to an extent that required surgery. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that a right shoulder condition was aggravated beyond a natural progression by service such that entitlement to service connection is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for a right shoulder condition is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs