Citation Nr: 21075705 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-04 891 DATE: December 21, 2021 ORDER Entitlement to service connection for right shoulder strain is granted. FINDING OF FACT The Veteran's right shoulder strain is related to service. CONCLUSION OF LAW The criteria for service connection for right shoulder strain are met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to October 1972 and from September 1975 to September 1993. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision, which denied entitlement to service connection for right shoulder strain. In June 2014 the Veteran filed a notice of disagreement (NOD) and in December 2016 the RO issued a statement of the case (SOC). In January 2017 the Veteran filed a substantive appeal (via VA Form 9). The Veteran died in May 2017 during the pendency of this appeal. In September 2017 the Veteran's surviving spouse filed a Request for Substitution of Claimant Upon the Death of Claimant (VA Form 21-0847). In a November 2017 letter the agency of original jurisdiction (AOJ) recognized the appellant as a substitute claimant. In January 2019 and August 2021, the Board remanded the claim. Entitlement to service connection for right shoulder strain is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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). A May 2014 VA examiner diagnosed the Veteran with right shoulder strain. An October 2016 VA examiner diagnosed the Veteran with postoperative right shoulder pain. Thus, a current disability has been demonstrated. In a January 2017 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that he injured his right shoulder during a softball game while on active duty. The Veteran stated that he has experienced shoulder pain since that time. He is competent to so state and the Board finds this statement credible. At the October 2016 VA examination the Veteran stated that he was "unable to pass his push-ups" during the last three years of his military service. An October 1983 service treatment record (STR) indicates that the Veteran complained of pain in his right deltoid muscle. A February 1979 STR indicates that the Veteran experienced right scapula brachial pain not related to trauma. Also, a March 1991 STR note indicates that the Veteran was diagnosed with shoulder arthritis, though, the physician did not specify which shoulder. Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's right shoulder strain and his military service. At the October 2016 VA examination the Veteran reported that his right shoulder pain began when he was ten years old while playing little league baseball. Based on this reporting, in January 2019 and August 2021 the Board remanded the Veteran's claim to determine whether there is clear and unmistakable evidence that the preexisting right shoulder condition was not aggravated beyond the natural progression of the condition. The Board notes that every veteran is presumed to have been in sound condition when examined, accepted, and enrolled into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). When a condition is not noted on entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). An August 1968 Report of Medical History indicates that the Veteran was examined as an applicant prior to serving on active duty in October 1968. The August 1968 Report of Medical History was stamped "enlistment." Thus, either this report must be considered an entrance examination, or there was an entrance examination and the report is missing. In either case, the Veteran is presumed sound as to his right shoulder when he entered service. Quirin v. Shinseki, 22 Vet. App. 390, n. 5 (2009) (the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody). The August 1975 Report of Medical Examination constitutes an entrance examination for his second period of active duty in the US Navy. As neither entrance examination contains a notation of a right shoulder disorder, the presumption of soundness is for application with regard to the Veteran's right shoulder in this case. Moreover, there is not clear and unmistakable evidence that a right shoulder disorder preexisted service and was not aggravated by service. Therefore, the presumption of soundness has not been rebutted and the claim is one for direct service connection. Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). A May 2014 VA examiner evaluated the Veteran and determined he did not have right shoulder arthritis. He did not opine whether the Veteran's right shoulder strain was related to his service and his opinion is afforded no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). An October 2016 VA examiner opined that the Veteran's right shoulder strain is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In June 2020 the same VA examiner opined that the Veteran's right shoulder strain was less likely than not aggravated beyond its natural progress by military service. In September 2021 a VA examiner opined that the Veteran's right shoulder strain was not aggravated beyond its natural progression by an in-service injury, event, or illness. As both VA examiners based their opinions on the premise that the Veteran's right shoulder strain clearly and unmistakably existed prior to his military service, they are therefore entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). At this point, the Board could remand the case again for yet another medical opinion, but this could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The evidence is sufficient to decide the claim. There is evidence of current right shoulder disability, in-service right shoulder injury, and continuous right shoulder symptoms reflecting a nexus between the two, with no probative evidence suggesting another cause of the current right shoulder disability. Entitlement to service connection for right shoulder strain is therefore warranted. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.