OSTEOARTHRITIS

Summary

The veteran, who served from August 2009 to December 2009 and again from January 2012 to October 2013, appeals the denial of service connection for acromioclavicular joint osteoarthritis of the right shoulder. The veteran contends that he injured his right shoulder during a hard parachute landing in 2009 while participating in airborne training. He did not seek treatment at the time due to military stigma but reported continuous worsening of pain since service. The Board found the veteran's lay testimony credible and accorded it significant probative weight, noting his competence to report pain and its onset. The VA's July 2018 and September 2020 examinations were found inadequate because they relied solely on the absence of in-service records and failed to adequately address the veteran's consistent reports of pain and the possibility of a nexus to the conceded in-service injury. A private medical opinion suggested a possible link but was qualified and used an incorrect legal standard. Applying the benefit of the doubt, the Board found the evidence in approximate balance, granting service connection for right shoulder acromioclavicular joint osteoarthritis.

Rationale

Veteran reported in-service injury from parachute landing; Lay testimony found credible and given significant weight; VA examinations deemed inadequate for failing to address nexus; Private opinion qualified and used incorrect legal standard; Benefit of the doubt applied due to approximate balance of evidence

Full Decision Text

Citation Nr: A26039480
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 201015-114984
DATE: April 28, 2026

ORDER

Entitlement to service connection for acromioclavicular joint osteoarthritis of the right shoulder is granted.

FINDING OF FACT

Resolving all reasonable doubt in the Veteran's favor, the weight of the competent evidence is at least in approximate balance that his right shoulder disability began in service and has continued since.

CONCLUSION OF LAW

The criteria for service connection for acromioclavicular joint osteoarthritis of the right shoulder have been met.  38 U.S.C. §§ 1110, 1141, 5103, 5103A, 5107 (2018); 38 C.F.R. § 3.102, 3.303 (2022).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 2009 to December 2009, and from January 2012 to October 2013.  This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In the October 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket.  Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing.  38 C.F.R. §?20.302(a).  The Veteran testified before the undersigned Veteran's Law Judge during an October 2024 hearing.  The transcript of the hearing is of record.

Entitlement to service connection for acromioclavicular joint osteoarthritis of the right shoulder

The Veteran contends that he is entitled to service connection for a right shoulder disability.

Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).  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).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When the evidence is in approximate balance in the veteran's favor or nearly equal regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal, the claim is to be denied.  See Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021).

In the October 2020 rating decision on appeal, the RO conceded that the Veteran had a diagnosed disability and an injury during service, notably parachute jumps.  Therefore, the only question remaining is that of a nexus between them.

Service treatment records are silent for any diagnoses, treatment, or complaints related to a shoulder disability.  Service personnel records show that the Veteran participated in airborne training from August to December 2009, as well as an active-duty assignment from January 2012 to October 2013.

During the October 2024 hearing, the Veteran testified that he began to feel pain in his right shoulder following a 2009 hard parachute landing while participating in airborne training.  He noted that he did not seek treatment at the time for his pain due to the stigma against medical complaints and his desire to continue his military career.  The Veteran also reported that his pain continued to worsen during and after service.  The Board notes that the Veteran is competent to report lay-observable symptoms such as pain and the time of its onset, and it accords his statements significant probative weight.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Moreover, the unders
2013.

During the October 2024 hearing, the Veteran testified that he began to feel pain in his right shoulder following a 2009 hard parachute landing while participating in airborne training.  He noted that he did not seek treatment at the time for his pain due to the stigma against medical complaints and his desire to continue his military career.  The Veteran also reported that his pain continued to worsen during and after service.  The Board notes that the Veteran is competent to report lay-observable symptoms such as pain and the time of its onset, and it accords his statements significant probative weight.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

The Veteran was afforded a VA shoulder examination in July 2018.  The Veteran reported that he injured the joint after hitting the ground during a parachute jump, and that the pain had continued since.  The examiner diagnosed him with acromioclavicular joint osteoarthritis but found that this was less likely than not related to his service because there was no objective evidence of a shoulder condition occurring during service.  October 2018 and November 2018 addendum opinions expanded on this opinion, noting there was no evidence of ongoing/chronic complaints, diagnosis, and treatment for the right shoulder condition noted in the available service treatment records, nor any complaints on the separation physical or post-service treatment records until 2018.  These opinions are based solely on the absence of a disability in service and fail to address the Veteran's competent lay statements regarding the onset and persistence of his symptoms.  They are therefore inadequate and the Board will afford them no probative weight.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also Miller v. Wilkie, 32 Vet. App. 249, 259-60 (2020).

A September 2020 VA etiology opinion also found that the Veteran's right shoulder disability was less likely than not related to his service.  The examiner found that the Veteran's report of an in-service onset was not consistent with diagnosis because it was more consistent with an overhead lifting and repetitive motion injury.  However, the examiner did not explain how the presence of another possible risk factor necessarily supported his opinion that the Veteran's in-service injury could be disassociated from his disability process, particularly given his competent lay report of continuity of symptomology since service.  As the opinion lacked clear supportive rationale, it is inadequate and will be afforded no probative weight.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

In support of his appeal, the Veteran submitted a January 2020 private medical opinion.  The examiner noted his contention that his right shoulder pain began in 2009 while parachuting in the military.  The examiner concluded that there was a chance that the right shoulder pain with changes noted on 2018 imaging was due to the parachuting incident, but she conceded that she could not definitively say there was a direct causal relationship given the amount of time that lapsed between the incident and her examination.  The Board acknowledges that this opinion is qualified and applies the incorrect legal standard in requiring "definitive" proof of a causal relationship rather than the correct "as likely as not" standard.  See Hodges v. Sec'y of Dep't of Health and Human Servs., 9 F. 3d 958, 965 (Fed. Cir. 1993) (Newman, J. dissenting); Jones v. Shinseki, 23 Vet. App. 382, 388 n.1 (2016).  While this renders the opinion inadequate to resolve the issue on appeal, the examiner's conclusion that there could be a nexus between the Veteran's current disability and the conceded in-service injury at least provides some support to his competent and credible lay statements.  The treatment record is silent for any objective evidence of a right shoulder disability until 2018.  However, the Board cannot use the absence of contemporary medical records alone to disregard the Veteran's report.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).

Accordingly, the Board finds that, applying the
, 23 Vet. App. 382, 388 n.1 (2016).  While this renders the opinion inadequate to resolve the issue on appeal, the examiner's conclusion that there could be a nexus between the Veteran's current disability and the conceded in-service injury at least provides some support to his competent and credible lay statements.  The treatment record is silent for any objective evidence of a right shoulder disability until 2018.  However, the Board cannot use the absence of contemporary medical records alone to disregard the Veteran's report.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).

Accordingly, the Board finds that, applying the benefit of the doubt, the weight of the competent evidence is at least in approximate balance that the Veteran's right shoulder disability began in service and has continued since.  See O'Harev. Derwinski,1 Vet. App. 365 (1991); Cromer v. Nicholson,19 Vet. App. 215 (2005).  Service connection is therefore warranted.  38 C.F.R. § 3.310.

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Bock

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.