Citation Nr: 1004772 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 08-03 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1949 to January 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Waco, Texas RO. The Veteran requested a Travel Board hearing; he withdrew such request in February 2008. In June 2009 the case was remanded for additional development. The Veteran had also initiated appeals from denials of service connection for bilateral hearing loss and residuals of a low back injury and a statement of the case (SOC) was issued. He has not filed a substantive appeal in these matters and they are not before the board. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302-20.304. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT It is reasonably shown that the Veteran's current left shoulder disability is related to an injury in service. CONCLUSION OF LAW Service connection for a left shoulder disability is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant case; however, inasmuch as this decision grants the benefit sought, there is no reason to belabor the impact of the VCAA in the matter. B. Factual Background, Legal Criteria, and Analysis It has ben certified that the Veteran's service treatment records are unavailable, and likely were destroyed by the fire at the National Personnel Records Center in St. Louis. Therefore, VA has a heightened duty to assist him in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991) (an the Board has a heightened obligation to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The RO arranged for alternate source development; the only record located was a November 5, 1951 Morning Report from the Veteran's unit in Korea, showing that his military occupation specialty (MOS) was changed. A December 1998 and December 2004 VA X-rays of the Veteran's left shoulder were interpreted as showing moderately advanced osteoarthritis. A March 2006 VA outpatient treatment record notes that the Veteran reported a history of left shoulder pain since 1950. A June 2006 physical therapy consult notes that the Veteran reported a remote history of falling from a vehicle 50 years prior with resultant injury to the left shoulder. The assessment was degenerative joint disease likely from an old rotator cuff injury. In a September 2007 statement, the Veteran's wife of 57 years stated that when he returned from Korea, he had complaints of left shoulder pain, and has had problems with the shoulder ever since. On October 2009 VA examination, the Veteran reported falling from a truck, dislocating his shoulder, and being treated at an aid station in Korea. On physical examination the diagnosis was a remote left shoulder dislocation with moderate to severe residuals. The examiner opined: "The Veteran's current left shoulder disability is at least as likely as not . . . caused by or a result of the injury to the left shoulder sustained while in the service." She further stated, "There is a nexus between the left shoulder injury of the past and present. Osteoarthritis will normally if age related, will be symmetrical. In this case, it is limited to the left shoulder and has affected his range of motion which indicates past injury." Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is not in dispute that the Veteran has a left shoulder disability (to include arthritis). He has consistently reported injuring his left shoulder by falling from a truck during his tour in Korea. His wife's statement corroborates his accounts of injury. Given the heightened obligation to consider the benefit of the doubt rule in those case where a Veteran's treatment records have been lost or destroyed, and because the Board has no reason to question the credibility of the Veteran and his wife, the Board finds that the evidence reasonably establishes that he sustained a left shoulder injury in service. The opinion of the October 2009 VA examiner establishes that the nature of the Veteran's current left shoulder disability is consistent with his accounts of a remote injury to the shoulder in service, and relates the current disability to service. The VA examiner's explanation that the current left shoulder disability is remote-trauma related and not due to the degenerative process because if the arthritis was related to such process it would be symmetrical bilaterally is probative and persuasive evidence in this matter. Accordingly, with resolution of reasonable doubt in the Veteran's favor, the requirements for establishing entitlement to service connection are met, and service connection for his left shoulder disability is warranted. ORDER Service connection for a left shoulder disability is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs