Citation Nr: 21004612 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-39 097 DATE: January 27, 2021 ORDER Entitlement to service connection for a right shoulder condition is granted. Entitlement to service connection for a right elbow condition is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the currently diagnosed right shoulder condition was incurred in or is otherwise attributable to service. 2. The evidence is at least in equipoise as to whether the currently diagnosed right elbow condition was incurred in or is otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder condition have been met. 38 U.S.C. §§ 1110, 1111, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a right elbow condition have been met. 38 U.S.C. §§ 1110, 1111, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2000 to August 2002. Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).   1. Right Shoulder Condition The Veteran contends that he experienced a right shoulder injury during basic training that resulted in a chronic right shoulder condition which continued throughout the rest of his service and which has persisted ever since his discharge. In the alternative, he asserts that his currently diagnosed right shoulder strain and bicipital tendinitis, even if they were diagnosed after service, are nevertheless attributable to this in-service right shoulder injury. He seeks service connection on a direct basis under either of these theories of entitlement. The question for the Board is whether the Veteran has a currently diagnosable right shoulder condition that began during service or is at least as likely as not related to an in-service injury, event, or disease, to include the in-service right shoulder injury. After consideration of the record, the Board concludes that the evidence is at least in equipoise as to whether the currently diagnosed right shoulder strain and bicipital tendinitis is attributable to service, and so service connection is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). A review of service treatment records reflects that the Veteran sought treatment for right shoulder pain in service in August 2000 that was attributed to pushups. The diagnosis at the time was bicipital tendonitis. Subsequent records show continued treatment throughout the rest of the month but no further treatment beyond that month. On an August 2002 medical assessment, the Veteran reported that he experienced an injury to his right shoulder during boot camp that resulted in right shoulder symptomatology that continued throughout the rest of his time in service and eventually spread to his right elbow. While there was no right shoulder condition recorded on the August 2002 discharge examination. the Veteran did report a history of right shoulder pain on the August 2002 Report of Medical History, which he described as pain with use as well as intermittent numbness. The Veteran was afforded a September 2018 VA examination to evaluate the nature and likely etiology of the claimed right shoulder condition, during which he reported that he had been experiencing right shoulder pain ever since an incident in service during physical training. After setting forth a diagnosis of a right shoulder strain, the examiner opined that it was less likely than not that the right shoulder condition was incurred in or was otherwise attributable to service. While the examiner acknowledged the Veteran’s documented treatment for right shoulder pain in service, they found no evidence of a continuing right shoulder condition after the Veteran received acute treatment following the initial injury at the beginning of service. The examiner also noted the lack of treatment following service for several years. The Veteran submitted an evaluation from a Dr. M.S. dated in October 2020, who indicated that he reviewed the claims file. After detailing the Veteran’s history of treatment for right shoulder and elbow pain following an incident in service wherein the Veteran experienced intense right arm pain after being asked to do over 100 push-up exercises in a sitting, Dr. M.S. opined that it was at least as likely as not that the Veteran’s currently diagnosed right shoulder strain and bicipital tendinitis were attributable to this in-service incident. In support thereof, Dr. M.S. highlighted the fact that the Veteran had no prior history of right shoulder pain at the time of his entrance into service and reported experiencing persistent right shoulder pain ever since the incident in service. Dr. M.S. also referred to medical literature which suggested that an overuse injury of the type detailed by the Veteran would likely contribute to the development of the chronic pain symptomatology experienced by the Veteran during and after service. Furthermore, Dr. M.S. directly contested the conclusion of the September 2018 VA examiner, finding that there was evidence of a chronic disability in service as reflected in the Veteran’s August 2002 Report of Medical History wherein he complained of experiencing continued right shoulder pain. A review of post-service medical records show that the Veteran complained of mild but chronic right shoulder pain when he first established care through VA in September 2016. Subsequent records reflect that the Veteran continued to have right shoulder pain listed as an active problem. A June 2018 outpatient note shows that the Veteran was evaluated as having right shoulder arthritis which he stated had been occurring since service. Upon review of the record, the Board finds that the evidence is at least in equipoise as to whether the diagnosed right shoulder strain was incurred in or is otherwise attributable to service; as such, service connection is warranted for the condition. Where, as here, there are conflicting medical opinions in the claims file, the Board is entitled to independently assess the opinions and make a determination as to relative weight to assign to each opinion. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). If the Board finds that a private opinion is less persuasive than an opinion offered by a VA medical examiner, it may attribute more probative weight to the VA medical examiner’s opinion, so long as that determination is supported by an adequate statement of reasons or bases for doing so. D’Aires v. Peake, 22 Vet. App. 97 (2008). On one hand, while the VA examiner provided a thorough history of the Veteran’s treatment for right shoulder symptomatology, he based his ultimate conclusion on the erroneous finding that there was no evidence of continuing right shoulder symptomatology following the August 2000 injury and the immediate treatment for that injury. As detailed above, the Veteran very clearly reported prior to his discharge that he continued to experience right shoulder symptomatology for the entirety of his time in service following the August 2000 injury. Accordingly, the Board finds that the September 2018 VA examiner’s opinion lacks significant probative value as it relies on this inaccurate factual premise. Sklar v. Brown, 5 Vet. App. 140 (1993). By contrast, Dr. M.S. in his October 2020 evaluation also thoroughly reviewed the Veteran’s medical history, but accurately noted that the Veteran while in service continued to report experiencing right shoulder pain following the initial injury in August 2000. As Dr. M.S. supported his conclusion with objective medical evidence that was corroborated by the record, the Board finds his opinion to be highly probative of the query of whether there is a nexus between the Veteran’s right shoulder condition and service. Sklar, supra. Ultimately, the Board finds that the evidence is at least in equipoise as to the issue of whether the right shoulder condition was incurred in or is otherwise attributable to service. Without comparing the merits of both medical opinions of record, the Board notes that Dr. M.S.’s highly probative opinion is both supported by the record and at the very least is not outweighed by the VA examiner’s opinion, muddled as it is by its reliance on the inaccurate determination that there was no evidence of the Veteran having experiencing right shoulder symptomatology following the August 2000 injury. Accordingly, as the evidence in support of the service connection claim is at least as probative as the evidence against, the Board concludes that service connection is warranted for a right shoulder condition on a direct basis. 38 C.F.R. § 3.303. The claim is thus granted in full. 2. Right Elbow Condition The Veteran contends that he experienced a right elbow injury during basic training that resulted in a chronic right elbow condition which continued throughout the rest of his service and which has persisted ever since his discharge. In the alternative, he asserts that his currently diagnosed right elbow strain, even if it was diagnosed after service, is nevertheless attributable to this in-service right elbow injury. He seeks service connection on a direct basis under either of these theories of entitlement. The question for the Board is whether the Veteran has a currently diagnosable right elbow condition that began during service or is at least as likely as not related to an in-service injury, event, or disease, to include the in-service right elbow injury. After consideration of the record, the Board concludes that the evidence is at least in equipoise as to whether the currently diagnosed right elbow strain is attributable to service, and so service connection is warranted. A review of service treatment records reflects that the Veteran sought treatment for right elbow pain in service in August 2000 that was attributed to pushups. The diagnosis at the time was bicipital tendonitis. Subsequent records show continued treatment throughout the rest of the month but no further treatment beyond that month. On an August 2002 medical assessment, the Veteran reported that he experienced an injury to his right shoulder during boot camp that resulted in right shoulder symptomatology that continued throughout the rest of his time in service and eventually spread to his right elbow. While there was no right elbow condition recorded on the August 2002 discharge examination. the Veteran did report a history of right elbow pain on the August 2002 Report of Medical History. The Veteran was afforded a September 2018 VA examination to evaluate the nature and likely etiology of the claimed right elbow condition, during which he reported that he had been experiencing right elbow pain ever since an incident in service during physical training. After setting forth a diagnosis of a right elbow strain, the examiner opined that it was less likely than not that the right elbow condition was incurred in or was otherwise attributable to service. While the examiner acknowledged the Veteran’s documented treatment for right elbow pain in service, they found no evidence of a continuing right elbow condition after the Veteran received acute treatment following the initial injury at the beginning of service. The examiner also noted the lack of treatment following service for several years. The Veteran submitted an evaluation from a Dr. M.S. dated in October 2020, who indicated that he reviewed the claims file. After detailing the Veteran’s history of treatment for right elbow pain following an incident in service wherein the Veteran experienced intense right arm pain after being asked to do over 100 push-up exercises in a sitting, Dr. M.S. opined that it was at least as likely as not that the Veteran’s currently diagnosed right elbow strain was attributable to this in-service incident. In support thereof, Dr. M.S. highlighted the fact that the Veteran had no prior history of right elbow pain at the time of his entrance into service and reported experiencing persistent right elbow pain ever since the incident in service. Dr. M.S. also referred to medical literature which suggested that an overuse injury of the type detailed by the Veteran would likely contribute to the development of the chronic pain symptomatology experienced by the Veteran during and after service. Furthermore, Dr. M.S. directly contested the conclusion of the September 2018 VA examiner, finding that there was evidence of a chronic disability in service as reflected in the Veteran’s August 2002 Report of Medical History wherein he complained of experiencing continued right elbow pain. A review of post-service medical records show that the Veteran complained of mild but chronic right elbow pain when he first established care through VA in September 2016. Subsequent records reflect that the Veteran continued to have right elbow pain listed as an active problem. A June 2018 outpatient note shows that the Veteran was evaluated as having right epicondylitis and also stated that his right elbow pain had been occurring since service. Upon review of the record, the Board finds that the evidence is at least in equipoise as to whether the diagnosed right elbow strain was incurred in or is otherwise attributable to service; as such, service connection is warranted for the condition. Once again, the Board notes that it has compared the opinions of record in determining that the evidence is at least in equipoise regarding the question of entitlement to service connection for a right elbow condition. Madden, supra. As the September 2018 VA examiner utilized the same rationale for the right elbow condition as he used for the right shoulder condition, the Board similarly finds that the negative right elbow opinion lacks significant probative value as that opinion relied on the inaccurate factual premise that the Veteran did not exhibit continued right elbow symptomatology following the August 2000 injury. Sklar, supra. By contrast, as stated previously, Dr. M.S. in his October 2020 evaluation accurately noted that the Veteran while in service continued to report experiencing right elbow pain following the initial injury in August 2000; therefore, the Board finds his opinion to be highly probative of the query of whether there is a nexus between the Veteran’s right elbow condition and service. Id. Ultimately, the Board finds that the evidence is at least in equipoise as to the issue of whether the right elbow condition was incurred in or is otherwise attributable to service. Without comparing the merits of both medical opinions of record, the Board notes that Dr. M.S.’s highly probative opinion is both supported by the record and at the very least is not outweighed by the VA examiner’s opinion, muddled as it is by its reliance on the inaccurate determination that there was no evidence of the Veteran having experiencing right elbow symptomatology following the August 2000 injury. Accordingly, as the evidence in support of the service connection claim is at least as probative as the evidence against, the Board concludes that service connection is warranted for a right elbow condition on a direct basis. 38 C.F.R. § 3.303. The claim is thus granted in full. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.