Citation Nr: 21000773 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-40 635 DATE: January 6, 2021 ORDER Service connection for right shoulder degenerative joint disease is granted. FINDING OF FACT The Veteran’s right shoulder degenerative joint disease began in service. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for service connection for right shoulder degenerative joint disease, are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1970 to October 1971. The Veteran testified before the Board at a March 2019 videoconference hearing. A transcript of the hearing is associated with the claims file. The Board remanded the appeal in August 2019 for further development. Entitlement to service connection for a right shoulder disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without 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 disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, there is no dispute that the Veteran has a current diagnosis of right shoulder degenerative joint disease. See January 2020 VA examination report. VA treatment records and the December 2013 VA examination report indicate diagnoses of right shoulder strain, impingement syndrome, and a history of chronic rotator cuff arthropathy as well. The January 2020 VA examiner reviewed all of the Veteran’s right shoulder records and concluded that the right shoulder diagnosis was degenerative joint disease. In reaching this conclusion, the examiner explained that degenerative joint disease was shown on an October 2014 magnetic resonance image (MRI) report and the Veteran had no radiating symptoms to suggest impingement syndrome. Further, the examiner noted that although a right shoulder strain was tenable, it could not be continuously established once degenerative joint disease was noted as the disorders produced similar symptoms. Thus, the Board finds that the appropriate diagnosis is right shoulder degenerative joint disease. The Veteran asserts that his right shoulder disorder began in service when he fell on his right side onto concrete. Service connection is already in effect for a right elbow disorder due to the same fall. Service treatment records indicate a fall onto concrete on the right side in June 1971 as well as a profile for one week for the entire right arm in June 1971 and instructions to wear a sling. The Veteran explained during his hearing before the Board that he did not seek treatment specifically for the right shoulder during service because the elbow was the greater disability. Transcript page 4. The Veteran has indicated that he has experienced right shoulder symptoms since service. In this regard, during a November 2014 VA surgery consultation, the Veteran reported to the VA clinician that he had experienced right shoulder symptoms for 43 years and reported the injury in service. The VA clinician did not indicate that he thought the Veteran was malingering or exaggerating the length of time that the Veteran’s shoulder had been symptomatic. To the contrary, the November 2014 VA clinician noted an assessment of traumatic arthritis of the right shoulder secondary to injury in Vietnam. The Veteran also offered sworn testimony that within a year of the injury in service, he started having a redness, like an infection, on his right shoulder that went down his arm and he would have shooting pain with it. Transcript page 3. VA records indicate that the Veteran previously reported being treated for right shoulder symptoms as early as 1973. See October 1981 request for benefits from VA. At that time, the Veteran reported the same elbow and shoulder injury in service and noted that he had been treated for both from 1973-75. Unfortunately, those records are not available as the private physician has passed away and the Veteran did not have copies of the records. See Transcript page 3. The Board acknowledges that the Veteran’s symptoms may have been intermittent as a November 1975 report of medical history for Reserve service indicates the Veteran’s denial of shoulder pain at that time. However, the Board has no reason to doubt the credibility of the Veteran’s statements that he injured the right shoulder at the same time that he injured his right elbow in service, and that he experienced intermittent symptoms from service to the present. During the pendency of the claim, the Veteran was provided with VA examinations in December 2013 and January 2020. Neither of the VA opinions were favorable; however, the Board finds neither can be relied upon to determine whether service connection is warranted. As explained in the August 2019 remand, the December 2013 VA opinion included multiple internal inconsistencies and was rendered prior to the diagnosis of degenerative joint disease in the right shoulder. In January 2020, the VA examiner offered detailed rationale as to the correct diagnosis for the right shoulder but did not adequately explain the basis for the negative opinion with respect to the relationship to service. The examiner cited as rationale that the Veteran’s record did not show a right shoulder condition or complaint shortly after separation from service and that therefore, there was no evidence showing that the Veteran’s shoulder condition was due to symptoms shortly after separation from service. In reaching this conclusion, the examiner did not address the Veteran’s statements that the Veteran had injured his shoulder at the same time that he injured his right elbow in service, and that he experienced right shoulder symptoms since service or shortly thereafter. Likewise, the examiner did not address the VA records dated in October 1981 indicated the Veteran’s report of treatment for the right shoulder from 1973-75. See Transcript page 3 and October 1981 request for benefits from VA. Finally, the examiner did not address the November 2014 VA clinician’s assessment that the Veteran’s traumatic arthritis in the right shoulder was secondary to injury in service. As the VA examiner did not address the Veteran’s statements, the October 1981 VA records which lend credibility to the Veteran’s statements, or the November 2014 VA treatment record which indicated that the Veteran’s right shoulder arthritis was due to the injury in service, the Board affords the January 2020 VA opinion limited probative weight. There is no evidence of an intervening cause since service that would have led to the present degenerative joint disease in the right shoulder. Moreover, given the longstanding claim and that VA has twice attempted but failed to obtain an adequate VA opinion, the Board finds that a remand for an addendum opinion would be futile and only unduly delay resolution of the claim. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s right shoulder degenerative joint disease had in-service onset. Resolving all doubt in the Veteran’s favor, the benefit sought on appeal is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, Counsel 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.