Citation Nr: 21026336 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-51 906 DATE: April 30, 2021 ORDER New and material evidence has been received, and the application to reopen the claim of entitlement to service connection for a right shoulder disability is granted. Service connection for a right shoulder disability is granted. FINDINGS OF FACT 1. A September 2004 rating decision denied the Veteran’s claim of service connection for a right shoulder disability. 2. Evidence associated with the record since the September 2004 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a right shoulder disability. 3. The evidence is in equipoise as to whether the Veteran’s right shoulder disability is related to active service. CONCLUSIONS OF LAW 1. The September 2004 rating decision that denied the Veteran’s claim of entitlement to service connection for a right shoulder disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for a right shoulder disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1983 to June 2004. He testified before the undersigned at a virtual tele-hearing in August 2020. A transcript of the hearing is associated with the claims file. The claims file includes records of VA treatment that were associated with the file after the last adjudication of the Veteran’s appeal in an August 2017 Statement of the Case. However, as the Board is favorably resolving the Veteran’s appeal in full, there is no prejudice in the Board reaching a decision at this time. New and Material Evidence The Agency of Original Jurisdiction (AOJ) last denied the Veteran’s service-connection claim for a right shoulder disability in a September 2004 rating decision, in pertinent part based on a finding that there was no current disability. The Veteran did not file a notice of disagreement, nor was new and material evidence received within one year. Accordingly, the September 2004 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In connection with the Veteran’s August 2015 claim to reopen, the Veteran submitted VA treatment records documenting ongoing treatment for and various right shoulder diagnoses. The Board finds such evidence to be new and material under the provisions of 38 C.F.R. § 3.156, insofar as it relates to the presence of a right shoulder disability. The claim is reopened. Service Connection The Veteran asserts that his right shoulder conditions developed in service due to his duties as a mechanic which included fixing tanks as well as the wear and tear and rigors of active duty service. Specifically, he has stated that in the mid-1990s, he noticed increased pain and clicking in his shoulders. See Hearing Transcript at p. 3. For the reasons discussed below, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran’s right shoulder disability, diagnosed as chronic pain, degenerative changes, and chronic tendinosis, had onset during his period of active duty, and the benefit sought will be granted based on direct service connection. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The Veteran underwent a February 2004 pre-discharge physical examination. While no right shoulder diagnosis was rendered, the Veteran specifically endorsed bilateral shoulder pain, and the examiner noted that the Veteran’s right shoulder condition was not due to injury but rather, it occurred slowly and progressively over time with increasing amounts of physical exercise—a finding that is consistent with the Veteran’s subsequent reports of how his shoulder pain onset in service and progressively worsened. The Veteran underwent a right shoulder X-ray in May 2008, and degenerative changes in the AC joint were noted. The Veteran underwent a VA orthopedic surgery consultation in June 2008, and he told the VA provider that he had a 10 to 15-year history of bilateral shoulder symptoms, with his right side worse than his left. He complained of clicking in the right shoulder with use. The impression was right shoulder chronic tendinosis. Magnetic resonance imaging (MRI) from June 2011 showed a complete full thickness tear of the rotator cuff tendon. The Veteran reported at that time that his right shoulder caused functional impairment insofar as he had limited ability to lift his right arm over his head. A February 2012 VA treatment note shows that the Veteran sought treatment for right shoulder pain and weakness after experiencing sudden pain in his shoulders after bench pressing heavy weights. He subsequently underwent a right rotator cuff repair. The Veteran underwent a VA examination in August 2017. At that time, the examiner wrote that the Veteran did not have any right shoulder diagnoses. The Veteran reported that he noticed clicking in his right shoulder during service and that he subsequently saw a doctor in February 2004. The Veteran told the examiner that he believed his rotator cuff tear from 2012 was related to the shoulder pain and clicking that started in service. The examiner opined that it was less likely than not that the Veteran had a right shoulder condition incurred in service. The rationale was that service treatment records were silent for medical encounters for right shoulder symptoms or problems. The examiner further reasoned that the Veteran’s clicking in the right shoulder noted on separation from service had no direct or indirect relationship with the later 2012 rotator cuff tear injury, which the examiner opined was a separate and distinct acute injury. The examiner added that the reported clicking did not necessarily indicate any structural problem in the shoulder and rather was a common symptom in non-injured and otherwise normal individuals. As noted above, the Veteran testified at his August 2020 Board hearing that he experienced shoulder pain starting in service due to his duties as a mechanic as well as overuse and the general wear and tear from the rigors of service, which also included exercise. VA treatment records show treatment throughout the entirety of the appeal period for right shoulder pain. Finally, friends and family submitted lay statements in October 2020 attesting to the progression of the Veteran’s right shoulder injury. Notably, a fellow Marine submitted a statement indicating that there were times during service when the Veteran was unable to participate in activities due to his shoulder pain. In light of the above, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran’s right shoulder disability had onset during his active duty service. The Board finds that the August 2017 VA opinion has limited probative value insofar as the examiner seemed to relate the Veteran’s right shoulder condition to a 2012 exercise injury for which the Veteran sought treatment, without consideration of the Veteran’s statements as to the continuity of his shoulder symptoms since service, which is shown in the VA treatment records on file. Indeed, in June 2008, the Veteran told a VA provider that he had a 10 to 15-year history of shoulder pain, a statement corroborated by the February 2004 examination wherein the Veteran endorsed bilateral shoulder pain. The Board has also considered the Veteran’s more than 20-year history of active service where he worked as a mechanic and, as explained at his August 2020 Hearing, hurt his shoulder due to general wear and tear and the rigors or service. The lay statements submitted in support also tend to support the Veteran’s theory as to onset and continuity. For these reasons, the Board will resolve all doubt in the Veteran’s favor and find that entitlement to service connection for a right shoulder disability is granted based on in-service onset. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.