Citation Nr: 1005146 Decision Date: 02/04/10 Archive Date: 02/25/10 DOCKET NO. 06-37 307A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran had active service from January 1985 to January 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision entered in August 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, denying the Veteran's original claim for service connection for a left shoulder disorder. Due to the Veteran's relocation, and at his specific request, his VA claims folder was thereafter transferred to the RO located in Denver, Colorado, for further processing. FINDING OF FACT The Veteran's current disability of the left shoulder is causally or etiologically related to service. CONCLUSION OF LAW A left shoulder disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, the Board finds that a discussion of the VA's "duty to notify" and "duty to assist" obligations is not necessary since the Veteran will not be prejudiced by any deficiency in those obligations given the favorable decision with respect to the claim herein addressed on the merits. The Veteran essentially contends that he has a left shoulder disorder related to inservice trauma to the affected area and he points to the opinion by his attending VA physician linking his current left shoulder disablement to an inservice injury. Applicable law provides that service connection will be granted if it is shown that the appellant suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). Service connection also may be granted for any disease initially 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability may be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Notice is taken that the RO determined in May 2008 that certain service treatment records, and in particular, records of outpatient treatment received at Kirtland Air Force Base, were unavailable for review. Under such circumstances, the Board recognizes that it must employ a "heightened" duty "to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule." See Cromer v. Nicholson, 19 Vet. App. 215, 217- 18 (2005), quoting O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); accord Russo v. Brown, 9 Vet. App. 46, 51 (1996) (explaining that precedent does "not establish a heightened 'benefit of the doubt,' only a heightened duty of the Board to consider applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed"). Available service treatment records denote left arm complaints in December 1986 when clinical evaluation showed a red indentation under the left scapula, with coolness on palpation and evidence of nerve spasm. The assessment was of a latissimus dorsi strain. Some improvement was noted two days later. In July 1988, medical assistance was sought for a complaint of pain in the upper portion of the back noted by the Veteran when carrying tools; the assessment was of a possible trapezius muscle strain. Service treatment records do not otherwise specify any complaints or findings with respect to the Veteran's left shoulder. While the Veteran remained on active duty, he was afforded a VA medical examination in October 2004. At that time, the existence of a left shoulder disorder was denied by the Veteran and clinical examination showed no pertinent abnormality. No pertinent diagnosis was recorded. Notwithstanding the foregoing, the record demonstrates that magnetic resonance imaging (MRI) in October 2006 identified degenerative changes of the Veteran's left acromioclavicular joint, in addition to supraspinatus tendinopathy with subacromial and subdeltoid bursitis versus a small bursal surface tear. When evaluated by a physical therapist in October 2006, the Veteran indicated that he had experienced left shoulder popping and associated pain since 1986 when rotating his left shoulder, with left clavicle popping occurring when maintaining a horizontal position. The assessments were then of joint pain localized to the left shoulder and chronic left shoulder impingement with possible rotator cuff tear. Left shoulder open subacromial decompression and distal clavicle resection followed in November 2006. Thereafter, complaints of left shoulder pain and dysfunction persisted. In February 2007, the Veteran sought a steroid injection of the left shoulder due to ongoing pain, with examination showing tenderness and full range of motion of the left shoulder joint. An MRI in March 2007 indicated fluid accumulation in the subacromial bursa and other changes from the prior subacromial decompression, as well as suspected partial thickness bursal-sided rotator cuff tears. The Veteran's attending VA physician in a statement, dated in April 2007, noted that it was at least as likely as not that the Veteran's current shoulder disorder was due to a shoulder injury he had sustained on active duty. While the VA physician did not specify that it was the Veteran's left shoulder that he was referring to, it is a reasonable inference, based on left shoulder treatment sought in the preceding months, that such physician was referencing the Veteran's left shoulder and its service-related etiology. Here, the Veteran offers a credible account of a spontaneous inservice injury to his left shoulder followed by a lengthy history of left shoulder pain and dysfunction in service and thereafter. While service treatment records do not corroborate the existence of the aforementioned injury, such records are incomplete through no fault of the Veteran and they nevertheless denote treatment for muscle or nerve involvement in the area of the left scapula in December 1986 and a possible trapezius muscle strain in July 1988. It, too, is significant that there is a showing of painful motion in combination with arthritic changes and tendinopathy, in addition to bursitis and/or a bursal tear, within the one- year period immediately after service separation and there is medical opinion evidence, not otherwise contradicted by the evidence of record, linking current left shoulder disablement of the Veteran to inservice trauma. That being the case, a grant of service connection for a left shoulder disorder, currently characterized as postoperative residuals of a open subacromial decompression of the left shoulder and distal clavicle resection, with degenerative joint disease and painful motion, is in order. As such, the benefit sought on appeal is granted. ORDER Service connection for a left shoulder disorder, characterized as postoperative residuals of an open subacromial decompression of the left shoulder and distal clavicle resection, with degenerative joint disease, is granted. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs