Citation Nr: 21026320 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 12-36 153 DATE: April 30, 2021 ORDER Service connection for a right shoulder condition, to include right shoulder strain and pain, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his right shoulder strain and pain is reasonably shown to be related to his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder condition have been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2005 to November 2005 and from July 2006 to July 2008. The present matter is before the Board of Veterans’ Appeals (Board) originally on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the case for further development in February 2016, September 2017, and August 2019. Most recently, the Board again remanded the issues of entitlement to service connection for right and left shoulder conditions, to include right and left shoulder strain and pain, in November 2020 for additional development. As explained in the November 2020 Board remand, the case was initially certified to the Board as a claim of entitlement to service connection for bilateral shoulder pain. In an April 2016 rating decision, the RO granted service connection for left shoulder rotator cuff tendonitis. The action resulted in bifurcation of the Veteran’s initial appealed issue, with the appeal regarding the left shoulder pain being abrogated. Subsequently, a February 2021 rating decision granted service connection for left shoulder impingement syndrome with left shoulder rotator cuff tendonitis and increased the disability evaluation to 20 percent, effective July 1, 2010. The Veteran has not disagreed with the initial evaluation and/or effective date assigned for his left shoulder condition. Accordingly, the grant of service connection for this issue is considered a full grant of benefits sought on appeal. Because there remains no case or controversy relating to this issue, the Board will not address it further in this decision. Service Connection 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, 1131; 38 C.F.R. § 3.303(a). To establish service connection, 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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See 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). The Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider considers such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The United States Court of Appeals for Veterans Claims has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).   Entitlement to service connection for a right shoulder condition, to include right shoulder strain and pain The Veteran contends he suffers from a right shoulder condition as a result of an incident that occurred in service, in December 2007, which involved the handling the mooring lines used to tie down his ship to the pier. See July 2020 VA Form 21-526. The question for the Board is whether the Veteran has a current diagnosis of a right shoulder condition that began during service, or is at least as likely as not related to an in-service injury, event or disease. The Board concludes that the Veteran has a diagnosis of right shoulder strain and resolving reasonable doubt in his favor, the evidence supports a finding that it began during active service, or is otherwise related to an in-service injury, event or disease. At the outset, the Board notes the Veteran has been afforded several VA examinations to evaluate the nature and etiology of his right shoulder condition. While the April 2016, July 2018, and December 2019 VA examiners all found the Veteran’s right shoulder condition to be less likely than not related to his military service, the prior Board remands found these medical opinions to be inadequate as a result of their failure to adequately address the Veteran’s lay contentions and evidence contained in the service treatment records (STRs). In satisfaction of the most recent Board remand in November 2020, another VA examination was performed in January 2021. While the examiner once again opined the Veteran’s right shoulder strain was less likely than not incurred in or caused by the claimed in-service injury, event or illness, the examiner failed to consider the Veteran’s lay assertions of injury to the shoulder during his service. In fact, that examiner failed to provide any rationale beyond the fact there was “no objective evidence of any right shoulder claimed diagnosis.” See January 2021 VA examination. The Veteran’s STRs do not show any complaints of pain or treatment for the right shoulder as it relates to handling mooring lines used to tie down a ship to the pier, as the Veteran has reported. Notably, his July 2008 Report of Medical History for purposes of separation denied any issues related to his right shoulder. Similarly, his Report of Medical Assessment for purposes of separation showed no issues relating to his right shoulder. See STRs. Notwithstanding the lack of any documented in-service treatment for the Veteran’s shoulders as a result of his reported injury, the Board observes the Veteran is presently service-connected for the left shoulder based on the same consistent lay assertions the Veteran has provided of an injury which occurred during line handling on the ship. Despite the fact that the STRs are silent for any treatment relating to his left shoulder based on the Veteran’s contended injury, the April 2016 VA examiner found it was as likely as not that the condition was caused by the claimed in-service injury. See April 2016 VA examiner. The Veteran has consistently reported to the VA examiners that he injured both of his shoulders as a result of the same incident during his service while he was handling the mooring lines used to tie down the ship to the pier. It stands to reason that if the Veteran’s left shoulder was injured by the in-service incident as described by the Veteran, that his right shoulder may have suffered a similar injury. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that his current right shoulder condition is etiologically related to his military service as well. In making this decision, the Board has considered the Veteran’s consistent contentions throughout that his current right shoulder symptoms started in service and that they have continued since that time. The Veteran is competent to report symptoms that he perceived through his own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran’s contentions are buttressed by the fact that he is service-connected for his left shoulder based on the same theory of injury during his military service handling the mooring lines used to tie down the ship to the pier which he consistently has reported to VA examiners. (Continued on the next page)   Accordingly, after applying the benefit of the doubt doctrine, the evidence is in equipoise in showing that service connection for a right shoulder condition is warranted. Thus, the Veteran’s claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.