Citation Nr: 18153976 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 09-22 515 DATE: November 28, 2018 ORDER Service connection for a left shoulder disability is granted. Service connection for a right shoulder disability is granted. FINDING OF FACT The Veteran’s left and right shoulder disabilities were incurred in service. CONCLUSION OF LAW 1. The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1982 to June 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) at the Montgomery, Alabama RO. A transcript of that hearing is of record. In March 2015, March 2016, September 2016, and September 2017, the Board remanded the current issues for further evidentiary development. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay 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). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and degenerative joint disease or arthritis become manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a right shoulder disability. The Veteran maintains that his bilateral shoulder disabilities are due to repetitive push-ups and heavy lifting during service, which he treated with over-the-counter medications. He reported that he experienced shoulder pain since service and prior to his 2004 work injury. Board Hearing Transcript at 21-31. Service treatment records show that in August 1982 the Veteran sought treatment for pain under his left shoulder blade and mid-thoracic area, as a result of which he was diagnosed with a muscle spasm of the back. Later that month, the Veteran returned for treatment and reported left suprascapular pain with paresthesia when applying pressure, such as when he carried his rucksack. He indicated it had begun during basic training. He was assessed with probable left suprascapular entrapment syndrome and underwent physical therapy. In September 1983, the Veteran first reported right shoulder pain but denied trauma and indicated that the pain had not lasted three weeks or more. The joint was not swollen or red. At his September 1984 separation examination, the Veteran reported recurrent back pain but denied shoulder pain. Post-service treatment records dated in October 2003 reflect that the Veteran reported that he incurred a work-related injury to his low back and upper right shoulder when he lifted a door on a trailer at his job. An October 2003 x-ray of the right shoulder revealed a normal examination. Treatment records from January 2007 to June 2008 indicate that the Veteran continued to report neck, shoulder, and back pain for which he was treated with facet injections. At his February 2008 chiropractic consultation, the Veteran reported cervical, trapezius, and low back pain that occurred in 2006 and returned in December 2007. He also indicated he had a job-related injury and automobile accident. The December 2012 VA examiner diagnosed degenerative joint disease of each shoulder. He referenced an x-ray examination of the bilateral shoulders noting probable minimal degenerative change at the left acromioclavicular joint. The examiner opined that these disabilities were less likely than not related to service. He explained that there was no documentation of a chronic condition during or after military service, and the Veteran had a history of an on the job injury to the shoulders and back while working as a truck driver. However, in March 2015, the Board found this opinion inadequate as it did not address the Veteran’s competent and credible statements that he experienced shoulder symptoms in and since service or his contention that his current shoulder disabilities had their onset in service and were exacerbated by his post-service employment and injuries as a truck driver. Pursuant to the March 2015 Board remand, the Veteran was afforded another VA examination in April 2015. In March 2016, the Board found this examination and accompanying opinion was inadequate to decide the claims. The Board found that the examiner’s opinion regarding the Veteran’s bilateral shoulder conditions was inadequate, as it did not explain why such complaints were not compatible with the current symptoms, especially considering that the Veteran testified that he has had consistent symptoms from the time of service to the present. Pursuant to the March 2016 Board remand, the Veteran underwent another examination in March 2016. In September 2016, the Board found the March 2016 opinion was also inadequate. The Board noted that the examiner did not explain why the shoulder symptoms documented in service were incompatible with his current diagnoses. The Board also found that the examiner’s statement that the bilateral shoulder disorders were not caused by or the result of post-military injury because the Veteran continued to work as a truck driver is conclusory and an insufficient evaluation of the Veteran’s medical history as it would be possible for a veteran to have in-service injuries aggravated by post-service injuries but still not be of such severity as to prevent employment. Pursuant to the September 2016 Board remand, the Veteran was afforded another examination in December 2016. The Veteran reported that his shoulder pain began in 1982 when he would carry his rucksack during basic training. The Veteran also reported a history of popping sensations, arthritis, and a rotator cuff tear in 2004 and 2005. The examiner diagnosed the Veteran with bilateral shoulder strain as the most recent imaging in December 2016 did not reveal shoulder degenerative joint disease. She opined that the Veteran’s bilateral shoulder strain was less likely than not related to service. She reasoned that the Veteran had no evidence of a right shoulder injury during active duty or within one year of separation from service. The examiner noted that October 2003 treatment records documented a worker’s compensation examination report documenting complaints of lower back and upper shoulder pain when the Veteran lifted a door on a trailer. In a March 2017 addendum opinion report the examiner further explained that the Veteran’s in-service bilateral shoulder symptoms are incompatible with his current diagnosis because the characteristics of the in-service symptoms, i.e. location, aggravation factors, and description of pain, differ from his current report of shoulder conditions. She further stated that the Veteran’s current bilateral shoulder symptoms were not an aggravation of his in-service systems because he had a separate and distinct post-service injury that likely resulted in his current symptoms. Significantly, however, in September 2017, the Board found that the examiner did not explain why or how the location, aggravation factors, and description of pain differed. Pursuant to the September 2017 Board remand, an addendum opinion was obtained in October 2017. The examiner explained that the Veteran’s military shoulder symptoms included pain under the left shoulder blade and no recurrent right shoulder symptoms. She also stated that the in-service symptoms differ from the Veteran’s current symptoms as the in-service symptoms were under the shoulder blade and the current symptoms are the bilateral shoulder joints themselves. She also noted that the October 2003 treatment note documents immediate pain in the upper right shoulder and this was not noted during active duty. After a review of all the evidence, both lay and medical, and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a left and right shoulder disability is warranted. The Board finds that the October 2017 addendum VA opinion is also inadequate as it does not address the Veteran’s competent and credible statements that he has experienced the same shoulder symptoms in and since service, despite the October 2003 injury; the opinion also drew a speculative inference regarding the location of his right shoulder pain during service. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”) The Veteran’s statements that he experienced shoulder symptoms in and since service or his contention that his current shoulder disabilities had their onset in service and were exacerbated by his post-service employment and injuries as a truck driver are found to be competent and credible. Diagnoses of bilateral shoulder strain and bilateral shoulder degenerative joint disease have been established. Resolving doubt in the Veteran’s favor, the Board finds that the Veteran’s bilateral shoulder disabilities were incurred in service and the claims of entitlement to service connection for left and right shoulder disabilities are granted. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.102; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.”). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel