Citation Nr: 0815104 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-27 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for chronic left shoulder dislocation residuals. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The veteran had active service from May 1998 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Cleveland, Ohio, Regional Office (RO) which denied service connection for chronic left shoulder dislocation residuals. In March 2008, the veteran was afforded a videoconference hearing before the undersigned Acting Veterans Law Judge. FINDING OF FACT The veteran's chronic left shoulder dislocation residuals are presumed to have been initially manifested during active service. CONCLUSION OF LAW Chronic left shoulder dislocation residuals were incurred during wartime service. 38 U.S.C.A. §§ 1110, 1111, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(b), 3.326(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for Department of Veterans Affairs (VA) benefits. In reviewing the veteran's claim, the Board observes that the RO issued a VCAA notice to the veteran in April 2005 which informed the veteran of the evidence generally needed to support a claim of entitlement to service connection; what actions he needed to undertake; and how the VA would assist him in developing his claim. The April 2005 VCAA notice was issued prior to the October 2005 rating decision from which the instant appeal arises. The VA has attempted to secure all relevant documentation. The veteran has been afforded a VA examination for compensation purposes. The examination report is of record. The veteran was afforded a videoconference hearing before the undersigned Acting Veterans Law Judge. The hearing transcript is of record. There remains no issue as to the substantial completeness of the veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007). The Court has held that the notice requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the instant appeal, the veteran was not informed of the type of evidence necessary to establish an initial evaluation and/or an effective date for the claimed disability. Notwithstanding the deficient notice given the veteran, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision given the favorable resolution below. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. filed, __ U.S.L.W.__ (U.S. Mar. 21, 2008) (No. 07A588); and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). II. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). Service connection may be granted for any disease 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) (2007). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2007). A veteran who served during wartime service after December 31, 1946 is presumed to be in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The provisions of 38 C.F.R. § 3.304 (2007) direct, in pertinent part, that: (a) General. The basic considerations relating to service connection are stated in § 3.303. The criteria in this section apply only to disabilities which may have resulted from service in a period of war or service rendered on or after January 1, 1947. (b) Presumption of soundness. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. (1) History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. (2) History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account. (3) Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and affect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record. The Court has clarified that: This presumption [of soundness] attaches only where there has been an induction examination in which the later-complained-of disability was not detected. See Bagby [v. Derwinski, 1 Vet. App. 225, 227 (1991)]. The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions", 38 C.F.R. § 3.304(b) (1) (1993). Crowe v. Brown, 7 Vet. App. 238, 245 (1994). See also Cotant v. Principi, 17 Vet. App. 116 (2003). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit), has held that: In view of the legislative history and the language of section 1111, we hold that the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in- service aggravation to overcome the presumption of soundness for wartime service under section 1111. The effect of section 1111 on claims for service-connected disability thus may be summarized as follows. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). In a 2003 precedent opinion, the General Counsel of the VA directed that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, the VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003. At his April 1998 physical examination for service entrance, the veteran reported having dislocated his left shoulder in August 1995. He was subsequently referred for a special orthopedic consultation. An April 1998 orthopedic evaluation indicates that the veteran presented a history of having injured his left shoulder while roller skating and subsequently dislocating it. On physical and radiological examination, the veteran exhibited a full range of motion of the left shoulder and the joint was noted to appear normal. An impression of "satisfactory healing [left] shoulder dislocation - suitable for enlistment" was advanced. Marine Corps treatment records dated in June 1998 state that the veteran complained of an obvious left shoulder deformity. He reported that he had dislocated his shoulder while doing a behind the head press on June 9, 1998. The dislocation was subsequently reduced. An impression of "[left] shoulder dislocation - recurrent" was advanced. A June 1998 orthopedic evaluation notes that the veteran exhibited mild left shoulder anterior instability. The examiner commented that "pre-[existing prior to service entrance] dislocation left shoulder-no aggravation by service." The veteran was subsequently found unfit for active service and discharged. The report of the veteran's April 1998 physical examination for service entrance and the associated April 1998 orthopedic evaluation indicates that the veteran sustained a pre-service August 1995 left shoulder dislocation. The veteran has repeatedly testified on appeal that he sustained a left shoulder dislocation prior to entering active service in April 1998. Such documentation constitutes clear and unmistakable evidence that the veteran sustained a left shoulder dislocation prior to service entrance. Therefore, it is necessary to next determine whether the veteran's pre-existing left shoulder dislocation was clearly and unmistakably not aggravated by active duty. A December 1999 X-ray study of the left shoulder from Robert Love, M.D., revealed findings consistent with a humeral head dislocation. A September 2003 surgical report from Ronald Hess, D.O, conveys that the veteran complained of chronic left shoulder anterior-inferior instability. The veteran underwent labral debridement; open anterior-inferior reconstruction; and a capsular shift. Diagnoses of left shoulder anterior-inferior instability, superior labral tear, a Bankart tear, a Hill-Sachs lesion, and capsular laxity were advanced. At a September 2005 VA examination for compensation purposes, the veteran complained of intermittent left shoulder pain, weakness, and fatigue. The veteran presented a post-service history of recurrent left shoulder dislocation and arthroscopic repair. The veteran was diagnosed with post-operative left shoulder recurrent dislocation residuals. The examiner commented that: My diagnostic impression of [the veteran] is that he has recurrent dislocation of the left shoulder that has been surgically treated. The condition existed prior to service and has continued since. It is my medical opinion that it is less likely than not that the veteran's current residuals of left shoulder dislocation were permanently aggravated by his inservice left shoulder injury. This opinion is based on the fact that the condition was pre-existing and was not made worse by the single dislocation during military service. At the March 2008 videoconference hearing before the undersigned Acting Veterans Law Judge, the veteran testified that: he initially injured his left shoulder while roller skating in 1995 prior to entering the military; was essentially symptom-free during the subsequently three year period prior to service entrance; and received a special orthopedic consultation at the time of his physical examination for service entrance which determined him to be physically qualified for enlistment. While performing Marine Corps physical training, he sustained a left shoulder dislocation and was processed out of the service. The veteran clarified that his left shoulder remained sore and symptomatic in the aftermath of his inservice injury. The Board has reviewed the probative evidence of record including the veteran's testimony and written statements on appeal. The veteran's service medical records indicate that he exhibited no left shoulder impairment or other abnormalities at his physical examination for service entrance. Following his inservice June 1998 left shoulder dislocation, the veteran exhibited left shoulder anterior instability. The post-service clinical documentation and the veteran's testimony on appeal convey that the veteran's left shoulder was chronically symptomatic following his June 1998 inservice injury. He exhibited chronic left shoulder instability. The report of the September 2005 VA examination for compensation purposes conveys that the veteran's pre-existing left shoulder disorder was "less likely than not ... permanently aggravated by his inservice left shoulder injury." The examiner advanced her opinion "based on the fact that the condition was pre-existing and was not made worse by the single dislocation during military service." The physician did not address either that the fact that the veteran's left shoulder was essentially asymptomatic for three years prior to his inservice injury or the left shoulder was unstable and otherwise chronically symptomatic following the injury. Further, she did not specifically indicate that any inservice increase in the veteran's left shoulder disability was due to the natural progress of his preexisting condition. The VA examiner's bare conclusory statement can not be reasonably construed as clear and unmistakable evidence establishing that there was either no inservice increase in disability associated with the veteran's left shoulder dislocation residuals or that such an increase was due to the natural progress of the disorder. Given this fact, the Board finds that the presumption of soundness as to chronic left shoulder dislocation residuals has not been rebutted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2007). Therefore, service connection is warranted for chronic left shoulder dislocation residuals on the basis that the veteran was presumed sound at service entrance and chronic left shoulder dislocation residuals were manifested during service. ORDER Service connection for chronic left shoulder dislocation residuals is granted. ____________________________________________ J. T. Hutcheson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs