Citation Nr: 21071910 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 10-33 507 DATE: December 1, 2021 ORDER Entitlement to service connection for a right shoulder disability is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's right shoulder disability is etiologically related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2014 decision, the Board denied the claim at issue in this appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Remand (JMR) and remanded the case to the Board. In November 2015, the Board remanded the issue for the administration of a new examination. Most recently, in a June 2018 decision, the Board remanded the instant claim a second time, finding that the VA examination conducted in April 2018 was inadequate. The case has now been returned to the Board for further appellate action. Service Connection Right Shoulder Disability The Veteran contends that his right shoulder disability was incurred in service from a fall on ice which required treatment during his active service. He further avers that his symptoms continued ever since the initial injury. The evidence establishes that the Veteran has a current disability of right shoulder rotator cuff tendinitis, thereby establishing the first element of service connection. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); see August 2021, VA Examination Report. Service treatment records (STRs) reflect that in August 1967 the Veteran was treated for complaints of right shoulder pain. He was provided X-rays and continuing treatment the following month provided a provisional diagnosis of a muscle strain. Later in September 1967, after noting right shoulder pain for over a month, the Veteran was diagnosed with bursitis of the right shoulder. Several weeks later he was referred for injections. By October 1967, STRs document that he was fit for duty, however, the Veteran continued to be treated for right shoulder pain up until his January 1968 separation from service. Despite the Veteran's ongoing treatment up until his separation, his separation examination from November 1967 did not indicate any shoulder injury or ongoing complaints of pain. Nevertheless, the Board notes that any probative value or consideration of this factual detail is outweighed by the STRs which show that in December 1967, the month following the separation examination, the Veteran again received treatment for his shoulder. Furthermore, the Veteran later provided candid and credible explanation that at the time of his separation examination, he did not fully understand what was being asked of him due to language barriers. Overall, the Board finds that the Veteran's STRs corroborate his assertion of an in-service injury to his right shoulder, as treatment for the injury is repeatedly reported over the course of several months throughout his records during active duty. In a May 2010 VA examination, the Veteran reported that he fell on ice in service and landed on his right side, over his rifle, which he was carrying on his right shoulder. He had experienced right shoulder pain since then. He further explained that he had worked as a manager of a department store after service, which he was able to do because he was left-handed and the work did not demand physical strength in his right shoulder. The examiner diagnosed right shoulder tendinitis, which was "not likely the same as was treated in the military service." However, the June 2015 JMR determined that this medical opinion was inadequate for adjudication purposes. A private treatment record dated in April 2011 indicates that the Veteran was seen at an orthopedic institute and the treating physician indicated that it was "difficult to decide" whether there was a connection between the current right shoulder bursitis, impingement, and rule-out small versus partial tear, as there were no recent x-rays or MRI. In an April 2018 VA examination, the Veteran again reported that he injured his right shoulder in service after falling on ice and landing on his right side. The examiner diagnosed right rotator cuff tendonitis, which he opined was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, as noted above, the Board determined in a June 2018 decision that this opinion was inadequate for adjudication purposes. The record reflects that the Veteran underwent a VA examination in August 2021 for his right shoulder disability. He reported to the examiner that he injured his shoulder during active duty when he fell on ice and his right shoulder hit the butt of his rifle. In finding that the Veteran's right shoulder disability is less likely than not related to his active-duty service, the examiner considered that the actual injury resulting in the complained-of shoulder pain during service was not documented. Furthermore, the examiner explained that subacromial bursitis typically presents with a good prognosis with conservative treatment and occasionally operative treatment. The extensive period of time between the Veteran's separation and diagnosis of right rotator cuff disability was also considered in the negative nexus opinion rendered. While the Board finds that the VA examination was adequate to the extent that the examiner discredited the Veteran's explanation for the absence of notation of his disability in his separation examination, the Board finds that there no indication in the record that the Veteran's assertion is less than fully credible. In continuous pursuit of his claim since 2008, the Veteran has repeatedly explained that his right shoulder symptoms have continued since service. The Board finds that the Veteran has provided consistent and credible accounts of his right shoulder disability symptoms beginning in service and continuing ever since, being later diagnosed as rotator cuff tendonitis. See Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The report of ongoing symptoms and the documented in-service treatment reflecting shoulder pain and injury in service weigh in favor of the Veteran's claim. While the August 2021 VA examination report provides evidence that weighs against the claim, the Board does not find that it is of sufficient probative value to be dispositive of the issue. Accordingly, the Board finds that the evidence for and against the claim is in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a right shoulder disability is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, Associate 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.