SHOULDER IMPAIRMENT OF

Summary

The Veteran, a Veteran who served from May 2006 to January 2007, June 2008 to December 2008, and June 2010 to June 2011, including service in Afghanistan, appeals the denial of service connection for a right shoulder disability. The Veteran contends the disability is secondary to his service-connected lumbosacral and cervical spine conditions, and that it resulted from an in-service IED blast. The Board reviewed multiple VA examinations from 2016, 2020, and 2024, noting diagnoses of right shoulder strain and arthralgia in earlier exams, but a February 2024 exam found no diagnosis. The Board found the Veteran's lay statements regarding the IED blast and persistent pain credible, despite the lack of in-service treatment records, applying the benefit of the doubt doctrine. The Board found the VA examiner opinions to be speculative and not substantially detracting from the Veteran's credibility. The Board concluded that the evidence, when viewed in aggregate and resolving reasonable doubt in the Veteran's favor, was sufficient to establish service connection based on a temporal relationship between the in-service event and the onset of symptoms. Service connection for the right shoulder disability is granted.

Rationale

Veteran's lay statements regarding IED blast and persistent pain found credible.; VA examiner opinions found speculative and not substantially detracting from Veteran's credibility.; Benefit of the doubt doctrine applied due to approximate balance of evidence.

Full Decision Text

Citation Nr: 24018413
Decision Date: 04/30/24	Archive Date: 04/30/24

DOCKET NO. 19-03 844
DATE: April 30, 2024

ORDER

Service connection for a right shoulder disability is granted.

FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, the Veteran's right shoulder disability is due to an in-service injury.

CONCLUSION OF LAW

The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 2006 to January 2007, from June 2008 to December 2008, and from June 2010 to June 2011, including service in Afghanistan.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In both August 2019 and March 2023, the Board remanded the claim for additional development.  

The Veteran contends that his right shoulder disability is related to service, specifically as secondary to his lumbosacral and cervical spine disability, which is service connected.  However, in its adjudication of appeals, the Board is not bound by a veteran's contentions-rather, the Board reviews and considers the evidence de novo and in light of all theories of service connection fairly raised by the appellant or the record, consistent with the VA's commitment to a "paternalistic, collaborative effort to provide every benefit to which the claimant is entitled." Evans v. Shinseki, 25 Vet. App. 7, 16 (2011).

The Veteran was afforded VA examinations for his right shoulder in 2016, 2020 and 2024.  At his earlier examinations, the Veteran was diagnosed with right shoulder strain and recently he was diagnosed with arthralgia of the right shoulder in March 2023.  Most recently, in February 2024, a VA examiner found no diagnosis of the right shoulder at all, disregarding the previous diagnoses of right shoulder strain and right shoulder arthralgia.  

The Veteran has claimed that he was involved in an IED blast while on active duty, injuring his right shoulder.  The Veteran claimed his symptoms from that injury continued, and have now worsened.  

To prevail on appeal, the evidence in a veteran's favor need only reach the level of being approximately balanced with or nearly equal to the evidence against them.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).  Thus, unless the evidentiary scales tip persuasively against them, a veteran is entitled to the benefit of the doubt as to any material fact.  See, e.g., Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021); Mattox v. McDonough, 56 F.4th 1369, 1378-79 (Fed. Cir. 2023).

Here, the evidence in favor of the existence of service connection consists almost exclusively of the Veteran's statements concerning the IED blast in service and his statements concerning worsening right shoulder pain while still in service.

Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature."  The Board finds the timing, persistence, and severity of an individual's shoulder pain are appropriate subjects for lay testimony.

In contrast, the evidence against the existence of service connection is from the 2016, 2020 and 2024 VA examiner medical opinions.  Those opinions are of limited probative value to the Board, however, as they were speculative and relied on an absence of treatment in service.  

The Board notes an absence of evidence is not the same as evidence of absence, and thus a lack of positive evidence can be considered negative evidence only if there is a proper foundation demonstrating that, under the circumstances, the silence in the record actually has a tendency to prove or disprove a relevant fact-i.e., if an event occurred or a fact existed, it would have been recorded. AZ v
 individual's shoulder pain are appropriate subjects for lay testimony.

In contrast, the evidence against the existence of service connection is from the 2016, 2020 and 2024 VA examiner medical opinions.  Those opinions are of limited probative value to the Board, however, as they were speculative and relied on an absence of treatment in service.  

The Board notes an absence of evidence is not the same as evidence of absence, and thus a lack of positive evidence can be considered negative evidence only if there is a proper foundation demonstrating that, under the circumstances, the silence in the record actually has a tendency to prove or disprove a relevant fact-i.e., if an event occurred or a fact existed, it would have been recorded. AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013); Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012).

Furthermore, even if the lack of medical records is due to the Veteran's decision to forego medical treatment for a sore shoulder while still in service, the Board finds this does not substantially detract from the credibility of the Veteran's descriptions pertaining to the origin and subsequent history of his shoulder condition.

On that basis, the Board considered the option of remanding this case yet again to address its concerns with the adequacy of the VA examinations and opinions.  However, in light of the existing favorable evidence, the Board has determined that a remand for a new VA examination or opinion would run afoul of the prohibition on remanding a case in order to obtain evidence against the Veteran.  See e.g., Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  

Furthermore, while the Board carefully considers the findings and opinions of medical professionals (and other experts) when adjudicating appeals, it will not "outsource" its responsibility or authority to resolve questions of entitlement to VA benefits, including making the necessary findings of fact.  See 38 U.S.C. § 7104, 38 C.F.R. § 20.103.  See also, Sizemore v. Principi, 18 Vet. App. 264 (2004); Delrio v. Wilkie, 32 Vet. App. 232, 242 (2019) Miller v. Wilkie, 32 Vet. App. 249, 259 (2020).

In conclusion, the Board has carefully evaluated the evidence of record, including the lack of medical evidence corroborating the Veteran's contentions of ongoing symptomology, and concludes in the aggregate it is sufficient to trigger the benefit of the doubt doctrine, thereby warranting a finding that the Veteran's right shoulder disability had its onset during service.

While there are various routes to establishing service connection, the simplest is demonstrating the onset of a disability during service.  38 C.F.R. § 3.303(a).  See also, Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty").   

This appeal is granted.

 

 

Timothy Cothrel

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nadia Kamal, 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.