Citation Nr: 25009152 Decision Date: 07/14/25 Archive Date: 07/14/25 DOCKET NO. 18-19 200A DATE: July 14, 2025 ORDER Entitlement to service connection for a left shoulder disability is granted. FINDING OF FACT The persuasive evidence reflects that the Veteran's left shoulder disability had its onset during his active duty service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 U.S.C. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to November 1972 and from September 1990 to March 1991, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in a December 2023 decision, the Board denied the Veteran's claim of entitlement to service connection for a left shoulder disability. In a November 2024 Order, the Court granted the parties' Joint Motion for Remand (JMR) and vacated the December 2023 Board decision because it found that the Board erred by failing to consider whether the Veteran was entitled to a combat presumption under 38 U.S.C. § 1154(b). The Court remanded the matter to the Board for readjudication consistent with the JMR. In March 2025, the Board remanded the claim to the agency of original jurisdiction (AOJ) for further development. After accomplishing the above, the AOJ denied the Veteran's claim (as reflected in an April 2025 supplemental statement of the case (SSOC)). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Entitlement to service connection for a left shoulder disability The Veteran asserted that his left shoulder disability had its onset during Operation Desert Storm and Operation Desert Shield. See December 2017 notice of disagreement. A January 2023 VA memo verified that the Veteran served in Southwest Asia from August 1990 and July 1991. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military 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 discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). An April 2012 VA examination report documented that the Veteran was a chemical specialist during Operation Desert Storm, and that he had engaged in combat due to exposure from scud missile, rocket fire, and use of an M-16. The Board also notes that under 38 U.S.C. § 1154(b), a veteran who engages in combat can establish the in-service incurrence element, even in the absence of any official record documenting such an event. Here, the Board finds that the April 2012 VA examination report and the military personnel records noting the Veteran's deployment to Southwest Asia during Operation Desert Storm and exposure to combat based on scud missile and rocket fire is sufficient to satisfy the in-service incurrence element. Moreover, December 2019 VA treatment records reflect that the Veteran has a long history of progressive shoulder pain. Thus, the first two elements required to establish service connection have been met. In connection with his claim, the Veteran underwent VA examination in April 2025. The examiner opined that the Veteran's left shoulder disability was less likely than not related to service. As rationale, she stated that "it appears the shoulder condition may have been acute only. Service treatment records do not support a chronic diagnosis, disability pattern or chronicity of care regarding the claimed shoulder condition while on active duty. The diagnosis of degenerative arthritis of left shoulder was established after military service." However, the Board finds this opinion is inadequate for several reasons. First, the examiner was uncertain whether the left shoulder condition was acute during service ("it appears the shoulder condition may have been acute only"). Moreover, in providing her negative medical opinion, the examiner appears to primarily rely on the absence of documented chronic shoulder condition in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination is inadequate where the examiner did not comment on a veteran's report of in-service injury and instead relied on the absence of evidence in a veteran's service medical records to provide a negative opinion). The Veteran has reported throughout the entire appeal period that he experienced continuous left shoulder pain symptoms both in and since separation from service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); 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). There is nothing to explicitly contradict the Veteran's reports, thus, they are credible and competent. Notably, the Veteran's competent accounts of incurrence and ongoing nature of his left shoulder disability are plausible, credible, and consistent with the places, types, and circumstances of service, and there is nothing of equal or greater probative weight in the evidence of record to contradict them. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). While the Board could request an additional medical opinion, in light of the combat presumption, the Veteran's competent and credible accounts of the inception and the ongoing nature of his left shoulder symptoms, such a request for another etiological opinion could be construed as an improper effort to develop evidence with the exclusive intent of denying the Veteran's service connection claim. 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, 225 (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 is sufficient to decide this service connection claim, as it is at least evenly balanced as to whether the Veteran's left shoulder disability had its onset in service. As the reasonable doubt created by this relative equipoise must be resolved in favor of the Veteran, entitlement to service connection for a left shoulder disability, on a direct basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kovacs, Mayer 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.