Citation Nr: A25035808 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240527-442718 DATE: April 18, 2025 ORDER Entitlement to service connection for bilateral shoulder pain causing impairment in earning capacity (bilateral shoulder disability) is granted. Entitlement to service connection for left hip pain causing impairment in earning capacity (left hip disability) is granted. Entitlement to service connection for degenerative arthritis of the bilateral knees (bilateral knee disability) is granted. Entitlement to service connection for lumbosacral strain is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's bilateral shoulder disability had its onset in service. 2. The evidence is at least evenly balanced as to whether the Veteran's left hip disability had its onset in service. 3. The evidence is at least evenly balanced as to whether the Veteran's bilateral knee disability had its onset in service. 4. The evidence is at least evenly balanced as to whether the Veteran's lumbosacral strain had its onset in service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral shoulder disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left hip disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbosacral strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to February 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2023 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for bilateral shoulder pain, left hip pain hip joint replacement, bilateral degenerative arthritis, knees, and lumbosacral strain. In a May 2024 Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182), the Veteran timely appealed the November 2023 rating decision to the Board and requested direct review of the evidence considered by the RO. 38?C.F.R. §?20.202. As the Veteran has selected the Direct Review docket, the Board may consider only the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on the issue or issues on appeal. 38 U.S.C. § 7113(a); 38 C.F.R. § 20.301. The Board will not consider evidence added to the record after the date of the AOJ decision on appeal. If evidence was added during this ineligible period, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, he may at any time file a supplemental claim with the AOJ after receiving this decision and the additional evidence will be considered in connection with the supplemental claim. 38 U.S.C. §§ 5104C(a)(1)(B), (b); 5108; 38 C.F.R. §§ 3.2501, 20.1105(a). If filed within one year, this supplemental claim will preserve the date of the claim denied herein as the effective date of the grant of the benefit or benefits sought. 38 U.S.C. § 5110(2)(B); 38 C.F.R. § 3.2500(h). 1. Bilateral shoulder disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval, air, or space service. 38?U.S.C. §?1110; 38?C.F.R. §?3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38?C.F.R. §?3.303(d). The Board notes that a diagnosis is not necessarily required to meet the current disability requirement and pain can constitute disability if it causes impairment in earning capacity. Saunders, 886 F.3d at 1364-65 (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1131). In Wait v. Wilkie, 33 Vet. App. 8, 15 (2020), the Court explained the requirements to demonstrate that pain reaches the level of functional impairment of earning capacity. First, the "pain must amount to a functional impairment - i.e., diminish the body's ability to function." Second, "VA must undertake an individualized assessment, which includes a preliminary evaluation of the degree of impairment. In other words, although pain alone can serve as a functional impairment, the mere existence of pain is not enough to constitute a disability. It must impair earning capacity." Wait, 33 Vet. App. at 15. In a May 2023 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that he injured his shoulders during basic training. He stated VA grants service connection for "pain, weakness and fatigue, flare-ups." The Board thus infers from the statement that the Veteran's bilateral shoulder disability causes him impairment in earning capacity. Thus, a current disability has been demonstrated. In the May 2023 VA Form 21-4138, the Veteran stated he has experienced bilateral shoulder pain in and since service. Based on these lay statements, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's current bilateral shoulder disability and his military service. In the May 2023 VA Form 21-4138, the Veteran stated he experienced bilateral shoulder pain in service which has persisted since that time. As these statements have been internally consistent, consistent with the other evidence of record, and consistent with the places, types, and circumstances of his service, the Board finds them competent and credible. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding observable symptoms); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran has not been afforded a VA examination for his bilateral shoulder disability. The Veteran has consistently stated that his shoulder symptomatology began during service. These statements are competent and credible. To the extent that the grant of service connection is based primarily on lay evidence, "[i]f the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence." Buchanan, 451 F.3d at 1337. Although the Board could remand for a medical opinion, this could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the foregoing reasons, the evidence of record is approximately balanced as to whether the Veteran's bilateral shoulder disability had its onset in service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral shoulder disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Left hip disability In August 2023 the Veteran attended a VA examination for his left hip disability. He reported he experiences left hip pain. The Board thus infers from the statement and the favorable finding that the Veteran's left hip pain causes him impairment in earning capacity. Thus, a current disability has been demonstrated. At the August 2023 VA examination, the Veteran stated he experienced left hip pain in and since service. Based on these lay statements, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's current left hip disability and his military service. At the August 2023 VA examination, the Veteran stated he experienced left hip pain in service which has persisted since that time. As these statements have been internally consistent, consistent with the other evidence of record, and consistent with the places, types, and circumstances of his service, the Board finds them competent and credible. Jandreau, 492 F. 3d at 1377; Buchanan, 451 F. 3d at 1337. An August 2023 VA examiner opined that the Veteran's left hip disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained his service treatment records do not indicate the Veteran hurt his left hip while in service. This VA opinion is inadequate because it failed to consider the Veteran's competent and credible lay statements regarding his continuous left hip symptomatology. Buchanan, 451 F.3d at 1336, n. 1 (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). For the foregoing reasons, the evidence of record is approximately balanced as to whether the Veteran's left hip disability had its onset in service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left wrist disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Bilateral knee disability and lumbosacral strain An August 2023 VA examiner diagnosed the Veteran with degenerative arthritis of the bilateral knees. An October 2023 VA examiner diagnosed the Veteran with lumbosacral strain. Thus, a current disability has been demonstrated as to both issues. In the May 2023 VA Form 21-4138, the Veteran stated he has experienced knee and low back pain in and since service. Based on these lay statements, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's bilateral knee disability and lumbosacral strain and his military service. In August 2023 the Veteran attended a VA examination for his bilateral knee disability. In October 2023 the Veteran attended a VA examination for his lumbosacral strain. At these VA examinations, the Veteran reported that he experienced knee and low back pain while in service which have persisted since that time. The Veteran is competent to reports these symptoms. Buchanan, 451 F.3d at 1337. As these statements have been internally consistent, consistent with the other evidence of record, and consistent with the places, types, and circumstances of his/her service, the Board finds them credible. The August and October 2023 VA examiners opined that the Veteran's bilateral knee disability and lumbosacral strain are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiners explained there are no STRs that indicate he experienced a low back injury or a knee injury. This VA opinion is inadequate because it failed to consider the Veteran's competent and credible lay statements regarding his continuous knee and low back symptomatology. Buchanan, 451 F.3d at 1336, n. 1. For the foregoing reasons, the evidence of record is approximately balanced as to whether the Veteran's bilateral knee disability and lumbosacral strain had their onset in service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral knee disability and lumbosacral strain is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Miller, 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.