Citation Nr: 21015006 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 18-53 034A DATE: March 16, 2021 ORDER Service connection for a left shoulder disability is granted. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran’s pre-existing left shoulder disability was aggravated beyond its natural progression during active service. CONCLUSION OF LAW The criteria for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to November 1967. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2016 rating decision. In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s claims file. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The presumption of soundness provides that a veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In such cases, the burden falls on the Veteran to establish aggravation. If the presumption of aggravation is applicable, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). A preexisting injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). This burden of proof must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary flare-ups, even in service, will not be considered sufficient to establish an increase in severity unless the underlying condition, as contrasted with the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292 (1991). “Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). Furthermore, a layperson is competent to report on the onset and history of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence as to the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, it is undisputed that the Veteran had a preexisting left shoulder disability upon entrance into active service. During his June 1965 entrance examination, he reported that he severely dislocated his shoulder in a bicycle accident in 1956, when he was 11. Thus, the issue before the Board is whether his active service aggravated his left shoulder disability beyond its natural progression. In March 1966, the Veteran’s service treatment records show that he was treated for a left shoulder injury. The visit note states that there was no evidence of a fracture and that the range of motion of this joint was intact. However, he reported experiencing pain, particularly with rotation. He was treated with ice and physical therapy. There are no other treatment records in the Veteran’s file for treatment of his left shoulder. A discharge, his separation examination did not note any left shoulder conditions. In March 2016, the Veteran was afforded a VA examination. He reported experiencing pain in his left shoulder which prevents him from heavy lifting and other maneuvering activities. Physical examination showed evidence of localized tenderness or pain on palpation as well as abnormal range of motion for his left shoulder. The examiner confirmed his diagnosis of left rotator cuff tendonitis. However, he opined that the Veteran’s left shoulder disability, which clearly and unmistakably preexisted service, was not aggravated beyond its natural progression by his active service. The rationale provided stated that there was no evidence to suggest that the Veteran had received treatment for a left shoulder condition following service and that there have not been any imaging studies of his left shoulder in many years. At the December 2020 Board hearing, the Veteran testified that, prior to service, his left shoulder was completely healed and that he had been able to return to all of his previous physical activities, including bowling, football, and baseball. He testified that his left shoulder was not bothering him at all until he re-injured it in basic training. He testified that, one day during physical training, his shoulder gave out completely. He stated that he was treated with ice and rest, but, even after the pain subsided, he was never able to complete certain physical tests involving his upper extremities. Further, he testified that throughout his service he continued to experienced problems with, including pain in, his shoulder. He stated that on several other occasions it “gave out.” He was given pain medication and put on light duty due to his reoccurring shoulder issue. After service, he testified that he continued to have left shoulder pain and sought treatment with a chiropractor. Additionally, prior to service he made money bowling competitively, but after he re-injured his shoulder, he was never able to perform at his pre-service level again. Based on the above, the Board finds that the Veteran’s preexisting left shoulder disability was aggravated beyond its natural progression during his service. While the March 2016 VA examiner opined that his disability was not aggravated beyond its natural progression during service, the Board finds that this examination is inadequate, as it does not provide a clear rationale and relies on the absence of complaints in the medical records without explaining why such absence is medically relevant. Nor does the opinion address the Veteran’s lay statements regarding his left shoulder pain during service. Accordingly, in this appeal, the Secretary has not met the burden to rebut this presumption of in-service aggravation of the Veteran’s pre-existing left shoulder disability. The Board finds that the Veteran’s left shoulder disability was shown to (CONTINUED ON NEXT PAGE) preexist his active service and that his competent lay testimony has shown that his left shoulder disability worsened beyond its natural progression during active service. Resolving reasonable doubt in favor of the Veteran, service connection for his left shoulder disability is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.