Citation Nr: 1032563 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 09-30 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a left shoulder/arm disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from February 26, 1979 to March 30, 1979. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran presented testimony at a Board hearing chaired by the undersigned Veterans Law Judge in May 2010, at the RO. A transcript of the hearing is associated with the claims file. The Veteran submitted medical evidence at the hearing, and provided, on the record, his waiver of initial RO consideration of such evidence. FINDINGS OF FACT 1. A left shoulder/arm disability predated service. 2. The pre-existing left shoulder/arm disability was worsened beyond its natural course by service. CONCLUSION OF LAW A left shoulder/arm disability was aggravated during peacetime service. 38 U.S.C.A. §§ 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306(a), (c) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). However, as the Board is granting the claim for service connection, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). II. Analysis The Veteran is seeking service connection for residuals of a ruptured left biceps tendon, which he maintains resulted from in- service aggravation of a pre-existing shoulder injury. Veterans are entitled to compensation from the Department of Veterans Affairs if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection may also 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). A 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 the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). The report of examination at enlistment into the U.S. Coast Guard contains normal clinical findings for the upper extremities; however, a hand-drawn chart of the body indicates a scar of the left shoulder. The examiner elaborated that there were no apparent functional limitations of the extremities. On the same date, the examiner noted on the report of medical history that the Veteran had a previous surgery for recurrent dislocated shoulder in 1978 (Magnusson-stack procdure), with staple removed January 25, 1979. A letter from the Veteran's private physician, dated January 3, 1978, is included in the service treatment records. That letter states that the Magnuson-Stack procedure was performed on April 13, 1978. Although the enlistment examiner was obviously aware of a recent shoulder surgery, and an even more recent staple removal surgery, he indicated that there was no abnormality of the shoulder or extremities, with the exception of a scar. The more detailed orthopedic information contained on the report of medical history does not prevent the presumption of soundness from attaching, since "[h]istory 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." 38 C.F.R. § 3.304(b)(1) (2009). Therefore, the Board concludes that the presumption of soundness attaches, and can only be rebutted by clear and unmistakable evidence that the injury existed before acceptance and enrollment and was not aggravated by service. An orthopedic consult dated February 28, 1979 reveals that the Veteran was doing push-ups 3 days prior, when his shoulder became dislocated. A treatment note dated February 28, 1979 reveals complaint of pain, and restricted dorsal range of motion, but the Veteran was able to perform push-ups and pull-ups. An x-ray dated February 28, 1979 is negative. On March 2, 1979, a treatment note reveals that the Veteran had a dislocation and spontaneous reduction while performing exercises, and that he did not have a red tag on the outside of his jacket as instructed. A March 3, 1979 note reveals that the Veteran was given a sling and instructed not to perform push-ups or left arm movements for 4 weeks. The report of a medical board proceeding dated March 20, 1979 reveals a diagnosis of chronic and recurring left shoulder dislocation. The Veteran was recommended for separation due to a disqualifying condition. While the evidence pertinent to service does establish that the Veteran in fact entered service with a left shoulder disability in the form of unhealed surgical residuals from a recent staple extraction surgery, such evidence does not establish clearly and unmistakably that the pre-existing disability was not aggravated by service. Rather, such evidence establishes that the Veteran's left shoulder was essentially asymptomatic at entry, with no symptoms or functional limitation noted on the examination report, but that the Veteran sustained another dislocation while performing exercises, and that subsequently, he was found to have a chronic and recurring condition manifested by dislocation, decreased range of motion, and pain. After service, the Veteran has testified and written that he experienced ongoing pain in the left shoulder region, and sustained a ruptured left biceps tendon in approximately 2008, while pulling on a wrench at work. X-rays in March 2009 revealed tendonitis and early degenerative changes. An April 2009 VA consultation reveals the examiner's statement that, if on his entrance examination, there was evidence of pain or other problems, then it is feasible that his early enrollment could have contributed to his shoulder pain. Regarding the biceps, he found it difficult to relate this injury to service. The Veteran's private physical therapist, R.W. has written that the Veteran's left shoulder was painful most of the time, and that motion was limited and painful above shoulder height. R.W. stated that, if proper post surgical protocol is not followed, problems can arise due to scar tissue formation, weakness of healing tissues, and inefficient mechanics. These can all lead to the symptoms reported by the Veteran. According to R.W., a protocol should be followed in order to make sure that range of motion is maximized, that healing tissue develops the strength necessary to withstand the forces generated at the joint, and that scar tissue production is managed and minimized. It was his stated opinion that proper protocol was not followed after the surgery to remove the staple and that there was not sufficient time before basic training exercises were imposed. Although R.W.'s opinion uses the term "can" arise due to scar formation, when read in context of the entire opinion, the intent of the opinion is clear. Use of cautious language does not always express inconclusiveness in a doctor's opinion on etiology. Cf. Watai v. Brown, 9 Vet. App. 441 (1996). An etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words. Lee v. Brown, 10 Vet. App. 336 (1997). R.W's opinion, when viewed in the context of his reasoning, i.e., that proper post-surgical protocol was not followed in the Veteran's case, is clearly intended to indicate that there is a relationship to his current disability. While there is some discussion in the service records regarding instructions that the Veteran had been given not to exercise, and regarding a red tag that he was supposed to display, prior to the February 1979 injury, there is in fact no evidence of duty restrictions being placed on the Veteran prior to the in-service injury. Even if true, these facts do not alter the Board's conclusion that the Veteran's pre-existing left shoulder disability increased in severity during service. There was no finding or assertion that the Veteran's actions in exercising prematurely constituted willful misconduct. Rather, the finding of the medical board was simply that there was no aggravation. The Board is not bound by this conclusion. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a). In this case, the presumption of aggravation attaches, as the Veteran's preexisting injury increased in severity during service. There being no evidence to rebut the presumption, the Board concludes that the service connection for a current left shoulder disability, diagnosed as tendonitis (ruptured biceps tendon) and degenerative changes, is in order. ORDER Service connection for a left shoulder disability is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs