SHOULDER IMPAIRMENT OF

Summary

The veteran, who served in the Marine Corps from December 1989 to September 1994, appeals the denial of service connection for a right shoulder disability and bilateral shin disabilities. The veteran testified at a Board hearing in May 2025 that he currently experiences constant pain in his right shoulder and bilateral shins, which impairs his earning capacity as a truck driver. The Board found that the veteran's testimony regarding his current pain and its impact on his ability to work was credible and consistent with his service. For the right shoulder, the Board noted that service treatment records showed a right trapezius muscle strain in May 1994, satisfying the in-service injury requirement. For the bilateral shin disabilities, the veteran testified to experiencing pain during strenuous physical training in boot camp and combat school, which he continued despite the pain, indicating an in-service onset. The Board found this testimony credible and sufficient to meet the in-service injury requirement. The Board determined that the evidence was approximately evenly balanced regarding the nexus between the current disabilities and service, and therefore, resolved the reasonable doubt in favor of the veteran. Consequently, service connection for right shoulder, right shin, and left shin disabilities, manifested by pain causing impairment in earning capacity, was granted.

Rationale

Current disability established by credible testimony of pain causing impairment in earning capacity.; In-service injury established by STRs showing right trapezius muscle strain in May 1994.; Nexus established by credible and consistent lay testimony regarding pain and impairment since service, with doubt resolved in veteran's favor.

Full Decision Text

Citation Nr: A26040618
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 210922-188383
DATE: April 30, 2026

ORDER

Entitlement to service connection for right shoulder disability manifested by pain causing impairment in earning capacity is granted.

Entitlement to service connection for right shin disability manifested by pain causing impairment in earning capacity is granted.

Entitlement to service connection for left shin disability manifested by pain causing impairment in earning capacity is granted.

FINDINGS OF FACT

1. The evidence is at least evenly balanced as to whether the Veteran's right shoulder disability had onset in service.

2. The evidence is at least evenly balanced as to whether the Veteran's right shin disability had onset in service.

3. The evidence is at least evenly balanced as to whether the Veteran's left shin disability had onset in service.

CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right shoulder disability have been met.  38 U.S.C. §§ 1110, 1131, 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 right shin disability have been met.  38 U.S.C. §§ 1110, 1131, 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 left shin disability have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1989 to September 1994.

This case comes before the Board of Veterans' Appeals (Board) from a June 2021 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO denied service connection for a right shoulder disability, and right and left shin disabilities.

In the September 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held before the undersigned Veterans Law Judge (VLJ) in May 2025.

Therefore, the Board may only consider the evidence of record at the time of the June 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Service Connection

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).

Right shoulder, right shin, left shin

The Veteran contends that he has had right shoulder, right shin and left shin pain in and since separation from service. 

The Board notes that a diagnosis is not necessarily required to meet the current disability requirement and pain can
 (2) in-service injury or disease; and (3) a relationship between the two. 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).

Right shoulder, right shin, left shin

The Veteran contends that he has had right shoulder, right shin and left shin pain in and since separation from service. 

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.

During the May 2025 Board hearing, the Veteran testified that he currently experiences constant right shoulder and bilateral shin pain. His right shoulder pain prevents him from raising his right arm overhead and interferes with his shifting gears, turning, steering, and carrying things on and off his truck as a truck driver.  Similarly, his right and left shin pain causes difficulty walking around a hard warehouse floor doing inventory for the company as a truck driver. Based on this testimony, the Veteran has indicated that his right shoulder, right shin and left shin pain causes him impairment in earning capacity.  Thus, a current disability has been demonstrated for his right shoulder, right shin and left shin.

The June 2021 rating decision favorably found that a qualifying event, injury, or disease had its onset during service as service treatment records (STRs) show right trapezius muscle strain in May 1994. Thus, for the right shoulder disability, the in-service injury or disease requirement is met. 

Regarding the right and left shin, the Veteran testified that during Marine Corps boot camp and in combat school, he ran every day in boots. He further testified that sometimes he ran 5 miles in boots during physical training, and at times, he felt throbbing, sharp pain after the first mile and continued the run in pain. His testimony indicates the onset of his bilateral shin problems that have since progressed to the pain that now interferes with his ability to walk around in his duty as a truck driver. Based on his testimony, the in-service injury or disease requirement is met for the right and left shin disabilities.

The remaining question is whether a nexus exists between the Veteran's current right shoulder and bilateral shin disability and his military service.

The Veteran reported that he experienced right shoulder, right shin and left shin pain in and since service. As this statement has been internally consistent and consistent with the places, types, and circumstances of his service, the Board finds it 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 right shoulder, right shin and left shin disabilities. While the Board could remand the claim for a VA examination or opinion, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying the 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, 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
 right shin and left shin disabilities. While the Board could remand the claim for a VA examination or opinion, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying the 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, 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").  To the extent that the grant of service connection is based primarily on lay evidence, "[i]If 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." Id. at 1337. 

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For the above reasons, the evidence is sufficient to decide the claims, as it is approximately evenly balanced as to whether the Veteran's right shoulder, right shin and left shin pain had onset in service and results in impairment in earning capacity.   As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right shoulder, right shin and left shin disabilities manifested by pain causing impairment in earning capacity 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	A. Hemphill, 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.