Citation Nr: 22037005
Decision Date: 06/28/22	Archive Date: 06/28/22

DOCKET NO. 18-14 534
DATE: June 28, 2022

ORDER

Entitlement to service connection for a right shoulder disorder is granted.

FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, his right shoulder disorder had its onset in service.

CONCLUSION OF LAW

The criteria to establish service connection for a right shoulder disorder have been met.  38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty with the United States Army from November 1984 to November 1988, November 1990 to June 1991, and January 2002 to June 2006, with additional periods of Reserve service.

The Veteran testified before the undersigned Veteran's Law Judge in February 2022 via videoconference. 

Service Connection

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303 (b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303 (b).

Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).

1. Entitlement to service connection for a right shoulder disorder

The Veteran asserts that he is entitled to service connection for a right shoulder disorder because the disorder originated during his active-duty service. 

The evidence reflects that the Veteran has a currently disability according to his 2013 VA examination he currently has degenerative joint disease, and he has history of right shoulder surgery in 2013.  Accordingly, the first element necessary to establish service connection has been demonstrated. 

Concerning the second element to establish service connection, the Veteran was first diagnosed with a shoulder disorder in November 2006 a few months after service per his 2013 VA treatment records.  Moreover, the record reflects a May 2006 and 1989 accident that caused trauma to the right shoulder.  Based on this evidence, the Board concludes that the second element has been demonstrated.

Regarding the third element, the Board notes the negative opinions of record.  However, a lack of a medical nexus is not fatal to the Veteran's claim because service connection may be established for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service, to include evidence showing continuity of symptoms during and after service.  38 C.F.R. § 3.303 (d).  Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for a right shoulder disorder is warranted.  38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Billinger, Associate Counsel