Citation Nr: 22010919 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 16-59 811 DATE: February 24, 2022 ORDER Entitlement to service connection for a right shoulder disability is granted. FINDING OF FACT The Veteran's current right shoulder disability is related to an in-service injury. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder disability are 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 February 1971 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In August 2020, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. The Board remanded the appeal for further development in February 2021 and November 2021. The Veteran asserts that his right shoulder disability is due to an in-service motor vehicle accident (MVA). See, e.g., February 2015 VA Form 21-526EZ (claiming "R. Shoulder Pain due to MVA on 11/15/1972 as annotated in S[ervice ]M[edical ]R[ecord]."); August 2020 Board Hearing Transcript [hereafter, Transcript], at 13 (describing the circumstances of the MVA). 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. Service connection generally requires evidence showing (1) a present disability; (2) an 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). It is undisputed that the Veteran has a current right shoulder disability, which satisfies the first element of service connection. See, e.g., August 2015 VA examination (diagnosing right rotator cuff tear) and May 2021 VA examination (diagnosing right rotator cuff repair residuals and right biceps tendon repair residuals). Regarding the second element, in-service incurrence or aggravation of a disease or injury, neither the Veteran's December 1970 entrance medical exam nor his January 1974 separation medical exam note any shoulder abnormalities; thus, he is presumed sound at service entry. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Furthermore, his service treatment records (STRs) show that he was treated for right arm pain in August 1971, before the MVA, and right shoulder pain the morning after the aforementioned November 1972 MVA. His service records contain no further mention of the injury; however, at hearing, the Veteran explained that the treating physician had been, understandably, more focused on his concussion. The Veteran also added that he was thrown from the vehicle by the force of impact and momentarily stunned. See Transcript, at 13. In this regard, the Board finds the Veteran's statements to be competent and credible, and ultimately concludes that the Veteran sustained an in-service injury to his right shoulder. Regarding the final element of service connection, or nexus, the Veteran presented for a third VA examination in December 2021. In this regard, the Board has found the August 2015 and August 2021 VA nexus opinions against the claim to be inadequate. See February 2021 and November 2021 remands. Moreover, the Board finds that the December 2021 VA opinion is also inadequate, as it does not discuss relevant medical treatment records. Specifically, in supporting a negative nexus, the December 2021 VA examiner states: "There are no medical records until 2015 noting any shoulder condition." However, a 1997 physical therapy treatment note documents: "Pain in the superior to ant[erior] shoulder with abd[uctor] type movements," with atrophy noted in the right scapular muscles. At that time, the treating physician noted the Veteran's reports of increased right shoulder pain associated with athletic activities, further noting: "I feel that [the Veteran] has chronic tendonitis of the rot[ator] cuff." (Emphasis added). Thus, the opinion lacks probative value. In favor of the claim is the November 2020 opinion of VA Dr. T. Tanguilig: "After further discussion with the patient, his right shoulder [condition is] at least as likely as not due to this [sic] military service." Here, the Veteran's VA physician offers a conclusory, yet positive, nexus opinion, presumably based on the Veteran's medical history of continuous right shoulder problems since service, which the Board has already determined to be credible. Moreover, as the Board has remanded this claim multiple times for an adequate medical opinion but has been unable to obtain one, and there is adequate information to adjudicate, the Board refuses to remand to solely develop the claim for negative evidence. See Andrews v. McDonough, 34 Vet. App. 151 (2021). In sum, when considering Dr. Tanguilig's nexus opinion with the credible lay statements of record, the fact that the Veteran's symptoms have not been attributed to any intercurrent etiology (other than a long lapse of time), the inability to remand solely for development of negative evidence, and the benefit of the doubt doctrine, the Board finds that the nexus element is met in this case. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 C.F.R. § 3.102. Put otherwise, as there is evidence establishing an in-service injury, resultant and persistent right shoulder pain until the Veteran's ultimate current diagnoses, and no adequate nexus opinion against the claim and one favorable opinion in favor of the claim, all elements of service connection are established, and entitlement to service connection for a right shoulder disability is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, 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.