Citation Nr: 21011313 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-55 160 DATE: March 1, 2021 ORDER Service connection for a right shoulder disability is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether a right shoulder disability had its onset in or is otherwise related to the Veteran’s period of service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability are 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 on active duty from February 1967 to January 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for further development in December 2018. In July 2020, it was determined the examiner did not sufficiently comply with the remand orders, and this issue was again remanded. The record demonstrates that the criteria for service connection for a right shoulder disability are met. The Veteran contends his right shoulder disability started in April 1968 when he fell from a helicopter 12 feet off the ground in Vietnam, resulting in ongoing right shoulder pain since; he was not treated for the incident when it occurred because they were in the middle of a combat event. See 02/05/2021, Appellate Brief; 11/26/2018, Appellate Brief; 05/26/2015, NOD. A witness to the April 1968 accident corroborated the Veteran’s statements regarding his in-service injury. 06/22/2015, Correspondence. The Board has found these assertions competent and credible. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Lay evidence, when credible, is competent to establish the presence of continuity of symptomology for a claimed disability during and since separation from active service and may provide sufficient support for a claim of service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). The absence of treatment shown within service treatment records is an insufficient rationale for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A VA examiner’s failure to consider the veteran’s testimony when formulating his or her opinion renders that opinion inadequate. Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record contains a competent diagnosis of a right shoulder strain, rotator cuff tendonitis, and instability; accordingly, competent evidence of a current right shoulder disability is found. 09/28/2016, C&P Exam. The Veteran’s service treatment records do not contain evidence of an injury or shoulder pain. See 04/03/1970, STR–Medical. An October 2014 VA examiner determined the Veteran’s right shoulder condition is less likely as not incurred in or caused by the in-service injury. The examiner’s rationale was there is no mention of a right shoulder condition in the Veteran’s medical records. 11/10/2014, C&P Exam. A September 2016 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that although the Veteran reported falling from a hovering helicopter at approximately 12 feet above the ground during Vietnam, there was no evidence in the record of the Veteran being evaluated for a right shoulder condition during military service. Furthermore, the condition was not noted on his separation examination conducted in January 1969. Therefore, the examiner opined that the current right shoulder condition was less likely than not related to military service. See 09/28/2016, C&P Exam. A December 2019 VA examiner determined a nexus could not be established for the shoulder injury during service because there is no service treatment record for the injury. 12/20/2019, C&P Exam. An October 2020 VA examiner opined the shoulder disability was less likely than not incurred in or caused by the claimed in-service injury. The rationale was that the record contained no information to suggest the Veteran incurred a chronic shoulder condition during service. The examiner acknowledged the fall from the helicopter but found it not presumptive to assume that if the helicopter fall caused the current shoulder problems, some complaints would be noted in the record during service or in the years immediately following separation from service. The examiner concluded there is no evidence to associate the condition with the fall objectively and doing so would be entirely speculative. See 10/20/2020, C&P Exam. The Board acknowledges the VA examiners’ opinions that it is less likely than not that the right shoulder disability had its onset in or is otherwise related to the Veteran’s period of service, but assigns those opinions diminished probative weight as they fail to discuss the Veteran’s contention that the right shoulder disability had its onset during service and whether a fall from 12 feet from a helicopter was as likely as not to result in the right shoulder disability. See Stefl, 21 Vet. App. at 124. Four VA examiner opinions regarding the etiology of the right shoulder disability with a notice of the adequacy requirements were solicited. Still, all the opinions were nevertheless inadequate as they failed to consider the Veteran’s lay statements and were only based on the absence of treatment evidence within the service treatment records. See Miller, 32 Vet. App. at 257; Buchanan, 451 F.3d at 1337. The Veteran has described experiencing symptoms of right shoulder pain since April 1968; those symptoms are attributed to a right shoulder strain, rotator cuff tendonitis, and instability, as diagnosed by the VA examiners. Inasmuch as the sole basis for the negative nexus opinions is the lack of medical documentation, it is reasonable to assume that had the examiners considered the Veteran’s lay statements, they would have provided a positive nexus. Again, the Veteran filed this claim seven years ago and perfected this appeal over four years ago. Both the Board and RO have attempted on numerous occasions to have the VA examiners consider the lay evidence of record. Considering the totality of the relevant evidence, the competent and probative lay and medical evidence are at least in equipoise as to whether the current right shoulder disability had its onset in or is otherwise related to the Veteran’s period of active service. Any doubt on the material issue of nexus is resolved in the Veteran’s favor, and the claim of service connection for a right shoulder disability is granted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.