Citation Nr: 22013246 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-45 853 DATE: March 9, 2022 ORDER Entitlement to service connection for a bilateral shoulder disability is granted. FINDING OF FACT It is as likely as not the Veteran's bilateral shoulder disability started during his service or is related or attributable to his service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for this bilateral shoulder disability. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to December 1989, including in Vietnam. In February 2020, the Board remanded this claim back to the local Regional Office (RO), so back to the Agency of Original Jurisdiction (AOJ), to retrieve missing service treatment records (STRs) from Boston Naval Hospital as well as for additional medical comment (an addendum medical opinion) concerning the etiology of this claimed condition, especially in terms of whether directly related or attributable to the Veteran's military service or secondarily related meaning caused or aggravated by any of his service-connected disabilities, including particularly his cervical spondylosis myelopathy. To this end, the Veteran underwent a VA examination in May 2021. However, while the Board is not entirely satisfied with the medical opinion evidence obtained in the case, it believes another remand for still more evidentiary development would amount to an exercise in futility and not benefit him. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand not required when it would impose unnecessary burdens on the VA adjudication system with no benefit flowing to the Veteran). Significantly, throughout the pendency of this appeal, the Veteran steadfastly has maintained that he was involved in two helicopter crashes in 1972 and 1973 while serving in Vietnam. His service treatment records (STRs) and DD Form 214 corroborate these unfortunate events. See, e.g., March 1981 ETS Examination (noting 1973 aircraft accident); October 1989 Retirement Examination (documenting 1972 aircraft accident). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b), and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence to establish the occurrence of the claimed event in service, even if not documented in the STRs, but these two crashes are. Nevertheless, if the Veteran was engaged in combat with the enemy when the incident occurred, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of his service. 38 U.S.C. § 1154(b);38 C.F.R. § 3.304(d). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the combat injury at least in service. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there still must be evidence of a current disability and a causal relationship ("nexus") between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Here, after considering the lay and medical evidence from both during and since the Veteran's service, as well as the fact that he indisputably engaged in combat against enemy forces in Vietnam, the Board is resolving all reasonable doubt in his favor and finding that service connection is warranted for his bilateral shoulder disability because it is as likely as not attributable to his combat service. 38 U.S.C. §§ 1110, 1154(a), (b); 38 C.F.R. §§ 3.303, 3.304. That notwithstanding, the Veteran also has submitted private medical records from Dr. K.C., including a March 2018 Disability Benefits Questionnaire (DBQ), noting bilateral shoulder pain and attributing it to the helicopter crashes during his service. See also April 2008 B.A.M. Buddy Statement. Certainly then, the evidence supporting this claim and posited relationship or correlation between the Veteran's bilateral shoulder disability and his combat service is as probative (competent and credible) as any evidence conversely against the claim, indeed, if not more favorable to this claim. And, in this circumstance, the claim is granted rather than denied. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.