Citation Nr: 21026095 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 13-35 518 DATE: April 29, 2021 ORDER Entitlement to service connection for a right shoulder disability is granted. FINDING OF FACT The preponderance of the evidence supports that the Veteran’s right shoulder disability is etiologically linked to her active duty service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability 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 on active duty in the United States Army from June 2008 to February 2009. This case was previously before the Board in June 2016, November 2018 and October 2020. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2015. The transcript is of record. In its November 2018 decision, the Board denied service connection for a right shoulder disorder. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated that part of the Board’s November 2018 decision. In light of the Joint Motion, the appeal was remanded in October 2020 to obtain an addendum medical opinion that adequately addressed the Veterans lay complaints of right shoulder “popping and pain” since service. The Veteran was afforded a VA examination, and new medical opinions were associated with the file in December 2020 and January 2021. The Board finds the examiners’ opinions inadequate. However, in light of the full grant of benefits awarded herein, further remand is not required. Entitlement to service connection for a right shoulder disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: “(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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). There is no dispute that the Veteran has been diagnosed with multiple disorders of the right shoulder including anterior labral tear, partial infraspinatus articular sided tear, and tenosynovitis. Therefore, the first element of service connection is satisfied. The Veteran’s service treatment records (STRs)are silent as to any shoulder injury prior to her active duty service. Similarly, her STRs are silent as to complaints of or treatment for a right shoulder injury during service. The Board notes that the absence of documented treatment or complaints in service or thereafter is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Veteran has competently and credibly reported onset of right shoulder pain during service. Specifically, the explained that she began experiencing symptoms of shoulder pain after she was assigned crutches for her service-connected hip injury. She reported that the pain worsened when she was required to continue doing pushups during PT. She also noted increased pain, popping, and burning sensations in her shoulder over time. The Veteran is competent to report when she experienced certain symptoms, and there is no reason to doubt the Veteran’s credibility. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). This is sufficient to establish the second element of her service connection claim. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, the sole remaining issue is nexus for which conflicting opinions have been provided. The Board previously deemed the March 2013 and August 2016 VA opinions inadequate. The Veteran underwent a new VA examination in December 2020. The examiner opined the Veteran’s right shoulder disability was less likely than not related to her active duty service. The examiner reasoned that the Veteran’s file was silent for treatment, management, or diagnosis of a right shoulder condition until 2015, and her separation examination was normal. The examiner relied solely on the six-year period between separation and treatment to support her negative opinion. The Board notes the Veteran provided substantial lay evidence that the December 2020 examiner failed to address or acknowledge. Notably, the examiner summarily dismissed the Veteran’s complaints of symptoms during service without providing a medical basis to doubt the Veteran’s report. The examiner’s reliance on the lack of documentation and failure to consider the relevant lay evidence renders the opinion inadequate. Likewise, the January 2021 VA medical opinion is inadequate as the examiner again relied on lack of objective medical evidence to show onset and chronicity. The examiner reasoned that any injury or pain associated with pushups, pull ups, shooting the gun, or prolonged use of crutches would “demonstrate significant pain while using the crutches and will seek immediate consult for it.” The examiner explained that the Veteran’s failure to seek treatment indicated she had no injury during service. In March 2021, the Veteran submitted a statement explaining why she did not seek treatment during service. The Veteran wrote that she was told reporting additional injuries would slow down her medical discharge. A fellow service member submitted a corroborating statement noting she was told the same thing during her discharge from the same unit. Additionally, the Veteran explained that she did not have insurance or the financial means to receive treatment for her shoulder injury after service. Nevertheless, she did seek treatment with the VA after service. Although she was provided an x-ray, additional testing was not made available to her until she secured private insurance several years after service. Several friends submitted statements regarding the Veteran’s inability to use her right arm in the years after service. The Board finds the lay evidence has some probative value when viewed in conjunction with the medical evidence. In November 2020, a private physician’s assistant (PA)opined that the Veteran’s right shoulder condition was etiologically linked to her active duty service. The PA found the Veteran’s symptoms had their onset during service due to overuse injuries after a prolonged period of using crutches. The PA noted that the medical literature supports prolonged crutch and assistive device use causing shoulder pain and disability. Moreover, the PA found no other explanation in the medical record for the Veteran’s pain. In January 2021, the Veteran’s long-time treating physician opined the Veteran’s shoulder disability was more likely than not due to her active duty service. The examiner noted the Veteran’s records did not reveal she had any should problems prior to service. Importantly, the physician noted she had treated the Veteran for shoulder pain immediately after discharge, in 2009. The physician explained that the crutches prescribed in the Army for the Veteran’s service-connected hip disability most likely caused crutch walker’s shoulder which was exacerbated by Army PT which overworked the joint. A third positive opinion was associated with the file in March 2021. A private physician’s assistant opined that the Veteran’s shoulder disability was related to her active duty service. The PA reasoned that the Veteran was diagnosed with shoulder impingement within 12 months of discharge. The Veteran did not have any right shoulder disabilities prior to military service and had suffered stress to the right shoulder stress during service either through use of crutches or during training. The PA noted that medical literature which “describes the initial development of shoulder impingement stemming from repetitive activity at or above the shoulder during work or sports as the main risk factor for development of shoulder impingement” was consistent with the Veteran’s credible reports. The Board notes that the private opinions were provided by medical professionals competent to render an opinion. Each opinion reflected reasoned consideration of the evidence of record and included sufficient explanation to the respective opinions. Moreover, there is no competent medical evidence of record to contradict the private opinions. Given the probative evidence, the Board finds that the preponderance of the evidence supports the Veteran’s claim. As such, service connection for a right shoulder disability is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.