Citation Nr: 21024542 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-14 150 DATE: April 23, 2021 ORDER Entitlement to service connection for a right shoulder disability is granted. FINDING OF FACT The evidence does not show by clear and unmistakable evidence that a pre-service right shoulder disorder was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1111, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service between August and November 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the claim on appeal for additional development. The case is again before the Board for appellate review. Entitlement to service connection for a right shoulder disability The Veteran contends that he aggravated a right shoulder disability during service. Law and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In all cases, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). “When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The “presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service.” Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). Where a pre-existing disability is noted upon entrance examination and is shown to have increased in severity during service, it is presumed that such increase in severity caused aggravation of the pre-service disorder, unless clear and unmistakable evidence establishes that the increase represents the natural progression of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Evidence and analysis The evidence in this matter consists of the Veteran’s lay assertions, service treatment records (STRs), service personnel records (SPRs), private and VA treatment records, and VA examination reports dated in March 2014 and February 2020. This evidence supports an award of service connection. The evidence shows that the Veteran has a current right shoulder disability. This is demonstrated most recently in the February 2020 VA report, which notes diagnoses of right shoulder strain, degenerative joint disease, and residuals of surgery. The evidence also shows that the Veteran entered active service with a right shoulder disability. And the evidence indicates that the disorder was aggravated during active service. An August 1978 enlistment report of medical examination indicates normal upper extremities upon examination. As such, the presumption of soundness applies here. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. The STRs contain a medical record dated in November 1977, prior to active service, in which the Veteran reported that he pulled his right shoulder out of its socket while playing basketball. He further indicated that at the time he was not seen by a physician, however at the time of the November 1977 encounter the Veteran reported chronic bouts of dislocation of his right shoulder. STRs dated in September 1978 show that the Veteran complained of right shoulder pain and dislocation after participating in physical activities during active service. At the time of the separation examination in November 1978, the Veteran reported that he had a trick shoulder. But he also indicated that he did not have any illnesses or injuries while on active service. Statements from officers in his chain of command indicate otherwise, however. For example, in a November 1978 statement recommending separation from service, the Veteran’s commanding officer stated: My recommendations are that [the Veteran] be discharged from the U.S. Army under the provisions of the Trainee Discharge Program. [He] reinjured his shoulder the second week of training, last cycle. He had a history of recurring shoulder separations prior to coming into the service. His medical condition is not serious enough to be medically discharged, however, without surgery the period of time required to heal properly is undetermined and very dependent upon his motivation and attitude. With surgery, it would be an estimated three to four months to heal properly. [The Veteran’s] motivation and attitude [are] very low and not conducive to rapid recovery. Based on this evidentiary background, the questions before the Board are: Is it clear and unmistakable that the Veteran had a pre-service right shoulder disability? And is it clear and unmistakable that the right shoulder disability was not aggravated by service? The March 2014 examiner did not address the claim under the proper evidentiary standard, so the findings are not applicable here. By contrast, the February 2020 VA examiner did address the proper evidentiary standard. The examiner found that clear and unmistakable evidence shows a pre-service disability and clear and unmistakable evidence shows the pre-service disability was not aggravated by service. However, the rationale provided by the February 2020 examiner undermines these conclusions, and instead demonstrates that clear and unmistakable evidence does not show that the right shoulder disorder was not aggravated by service. The February 2020 examiner noted that the record indicated that separation from service was not due to a medical problem. Nevertheless, the examiner found that an injury occurred in service and did aggravate a pre-existing problem. The examiner further stated that there was no way to determine if the aggravation was beyond the natural progression of the pre-existing condition. Based on the foregoing, the Board cannot find that clear and unmistakable evidence demonstrates that the pre-service right shoulder disability was not aggravated by service. The Veteran’s commanding officer made clear in November 1978 that the disability increased in severity during service. And despite having two VA compensation examinations conducted in this matter, the evidence does not show clearly and unmistakably that the disability was not aggravated by service. Indeed, the February 2020 VA examiner determined that the Veteran injured his right shoulder during service and that the injury may have aggravated the pre-existing right shoulder disability. In other words, the examiner indicated that the right shoulder disability was possibly aggravated in service. This is not clear and unmistakable evidence against the claim. As such, a service connection finding is warranted here. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.