Citation Nr: 21007034 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-39 944 DATE: February 8, 2021 ORDER Entitlement to service connection for bilateral shoulder strain is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s bilateral shoulder strain is related to service.  CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral shoulder strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from February 2004 to February 2008. This case the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the VA Regional Office, which, inter alia, denied service connection for left and right shoulder bursitis.  The issue has been recharacterized based on the evidence developed during the claim including the diagnosis on the most recent VA examination discussed below. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). In June 2014, the Veteran filed a Notice of Disagreement and a Statement of the Case was issued in September 2015, and in November 2015, the Veteran perfected his appeal to the Board.  A hearing was held before the undersigned in July 2018. A transcript has been associated with the record. In April 2019, the case was remanded by the Board and Supplemental Statement of the Case (SSOC) was issued in August 2020. Service Connection Service connection will be granted if the evidence demonstrates that 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 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). Entitlement to service connection for bursitis of the left and right shoulders. A November 2019 VA examination report indicates the Veteran has been diagnosed with bilateral shoulder strain. Thus, a current disability has been demonstrated.  In November 2004, service treatment records show that the Veteran reported pain and stiffness in joints. Therefore, the in-service injury element is met. Thus, the remaining question is whether the Veteran’s bilateral shoulder strain is related to his time in service.   In support of his claim, the Veteran testified, at his July 2018 hearing, that he has been experiencing shoulder pain since shortly after his first deployment in 2005. The Veteran’s MOS was as a Tactical Aircraft Maintenance Journeyman. He stated that, as an aircraft mechanic, he pushed heavy equipment on the flight deck, including hydraulic engines, he also lifted engine components which sometimes weighed up to 500 pounds, and did a lot of overhead maintenance, often working at difficult and awkward angles. He also recounted an incident during service when he was struck in the neck and shoulder by a 600-pound external fuel tank that fell from the wing of an aircraft. In his November 2015 VA Form 9, the Veteran stated that he had issues with both shoulders during service. However, his complaints were not well documented. In a June 2019 VA treatment report, he stated that his shoulder pain began at the same time as his service-connected lower back pain. The Veteran’s statements are competent, credible and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay witnesses are competent to testify as to their observations). Evidence against the Veteran’s claim includes a November 2019 VA examination report, in which the examiner opined that the Veteran’s bilateral shoulder pain disability was less likely than not incurred in or was caused by military service. As rationale, while the examiner acknowledged that July 2005 service treatment records (STRs) documented the Veteran indicated “pain or stiffness” in his joints, she subsequently stated that there were no STRs indicating shoulder pain upon his discharge from service. She stated that the Veteran’s symptoms were inconsistent with bursitis. She also noted there were no medical records documenting complaints or treatment of the Veteran’s shoulders until 2015, over seven years after service, and no treatment records from 2015 until 2019. The opinion is inadequate and of little probative value, as the examiner did not take into account the Veteran’s lay statements as to his shoulder injuries during service and his continuous symptoms of shoulder pain since leaving service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”).   As noted above, the Veteran’s lay statements regarding his shoulder pain are competent and credible, the lack of medical evidence of shoulder pain post-service is not fatal to the Veteran’s service connection claim. Buchanan, 451 F.3d at 1336 (“If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence”).  While the Board could remand the claim for an adequate medical opinion, a request for another opinion 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”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above evidence is sufficient to decide the claim. Given the competent and credible lay statements as to the Veteran’s continuous shoulder symptoms since service, and the inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran’s bilateral shoulder strain is related to his service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral shoulder strain is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  Given that the Board has granted service connection on a direct basis, consideration of other theories of entitlement is unnecessary. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. K. Donaldson, 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.