Citation Nr: 1034775 Decision Date: 09/15/10 Archive Date: 09/21/10 DOCKET NO. 07-29 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Schroader, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Louis, Missouri that denied the Veteran's application to reopen his claim of entitlement to service connection for a right shoulder disability. In September 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. In December 2008, the Board granted the Veteran's application to reopen his claim and remanded the matter for further development. Such development has been completed and associated with the claims file, and this matter is ready for further review by the Board. FINDINGS OF FACT 1. There is clear and unmistakable evidence that the Veteran had a preexisting right shoulder condition upon entering service. 2. The evidence does not clearly and unmistakably show that the Veteran's pre-existing disability was not aggravated by military service. CONCLUSION OF LAW Service connection for a right shoulder disability is warranted. See 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(b), 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim of entitlement to service connection for a right shoulder disability is granted, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (2009). "Only those conditions as are recorded in examination reports are to be considered as noted," and a "history of the pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b) (2009); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, No. 02-7347 (Fed. Cir. June 1, 2004). The Veteran claims that he incurred a right shoulder disability in service or, in the alternative, that it was aggravated by service. See, e.g., Board Hearing Transcript at 4-6; see also Form 9, September 1967 and November 1967.. The Veteran notes that no right shoulder condition was noted on entry and that he was medically discharged from service due to a right shoulder condition, and he asserts that there is not clear and unmistakable evidence in this case sufficient to rebut the presumption of soundness upon entry. See Statement, December 2004; Board hearing Transcript at 16. Private treatment records dated from February 2005 to November 2009 reflect that the Veteran has been followed and treated for various diagnosed right shoulder conditions. A February 2005 private radiological report from Dr. P.S.'s office reflects findings of some narrowing of the right acromioclavicular joint with deformity of the lateral end of the clavicle compatible with mild degenerative arthritis, and a diagnosis of degenerative arthritis of the right shoulder was recorded. It was also noted that the Veteran requested a referral to Dr. K.Z. A March 2005 private treatment record prepared by Dr. K.Z. reflects that the Dr. K.Z. recorded a history of a right clavicular fracture in service during boot camp. Dr. K.Z. reviewed the February 2005 x-ray from Dr. P.S.'s office, examined the Veteran, and recorded a diagnosis of right shoulder impingement syndrome, "which I believe is the source of his symptoms," and also a diagnosis of "old clavicular fracture, less likely as a source of his symptoms." An April 2005 private treatment record also prepared by Dr. K.Z. reflects that Dr. K.Z. recorded a diagnosis of rotator cuff tendonitis improving with cortisone injection, and a history of fracture. A September 2008 private facility MRI report relating to the Veteran's right shoulder reflects impressions of, among other things, moderately severe osteoarthritis of the acromioclavicular joint with inferior spurring and impingement. A November 2009 private facility operative report reflects that the Veteran underwent arthroscopic rotator cuff repair, debridement of labrum, subacromial decompression, and distal clavicectomy surgical procedures. In light of the above, the Board finds that the Veteran clearly has a current right shoulder disability. The Board will now address whether the Veteran's right shoulder disability is related to service, to include whether it was incurred in or aggravated by service. As an initial matter, the Veteran's December 1965 enlistment examination report is silent as to any notations of any right shoulder condition. Likewise, a March 3, 1966 notation entered onto the same December 1965 entrance examination report reflects "no additional defects discovered," and that the Veteran was found to be fit for duty. Likewise, a subsequent examination performed in 1966 at the recruit training center (the month is cut-off from the photocopy) reflects that no defects were noted except with regard to the Veteran's visual acuity, and that he was found to be fit for duty. As there was notation on entry of any right shoulder condition, the Board finds that the presumption of soundness applies. The first record of complaint in service of right shoulder problems is an October 1966 service treatment record, which reflects that the Veteran reported a history of having separated his right shoulder as a civilian in February 1966, that it was taped for two weeks, and that he had "done fairly well with some aching since," but that he experienced an increase in pain at that time. Findings noted on examination reflect that the Veteran's right shoulder was "loose" with crepitus, and the Veteran was referred for an orthopedic evaluation with a provisional diagnosis of chronic right shoulder separation. A November 1966 orthopedic evaluation (as the prior October 1966 orthopedic notation reflects "return with x-rays") reflects that examination of the Veteran's right shoulder revealed "very minimal luxation of acromioclavicular joint" and that no diagnosis was indicated at that time. Subsequent service treatment records dated from October 1966 to March 1967 reflect several complaints of right shoulder pain, and that the Veteran was again referred for two additional orthopedic evaluations in January and February 1967. A January 1967 orthopedic evaluation report reflects that examination of the Veteran's right shoulder revealed acromioclavicular subluxation and that conservative treatment was recommended in an effort to keep him on duty, but that if it was unsuccessful, that a medical board would be ordered. The February 1967 orthopedic evaluation report reflects that conservative treatment did not improve the Veteran's right shoulder condition, and the orthopedist had no further suggestions except to admit the Veteran as in inpatient and schedule a medical board evaluation. A March 1967 medical board report reflects that the Veteran reported a history of having injured his right shoulder while playing football in February 1966 as a civilian, that it was taped for two weeks and rehabilitated, that he reported for active duty the next month, and that he subsequently experienced constant pain in his shoulder that was aggravated by inclement weather and by lifting heavy weight overhead. Examination of his right shoulder revealed full range of motion with pain, crepitation, and instability of the AC joint as well as tenderness on palpation. The medical board diagnosed the Veteran with a subluxed right shoulder acromioclavicular joint with early degenerative changes, which was found to have preexisted service and not to have been aggravated by service. The Veteran was recommended for discharge from service as unfit for duty. The Veteran was medically discharged in April 1967. The Board notes that, by way of background, the Veteran filed his original claim for service connection for a right shoulder condition in April 1967. A May 1967 VA examination report reflects that no swelling, atrophy, limitation of motion or other deformity was noted except for some minimal crepitus, and an x- ray showed upward luxation of the acromial end. No diagnosis was recorded. The Veteran's claim was subsequently denied by way of a July 1967 RO decision, which decision cited a lack of evidence of any permanent aggravation of a preexisting right shoulder condition. The Veteran appealed the RO decision to the Board, and the Board likewise denied the Veteran's claim for the same reasoning. As noted above, by way of a December 2008 Board decision, the Veteran's claim was reopened based on new and material evidence submitted. As noted above, post-service treatment records dated from February 2005 to November 2009 reflect that the Veteran was followed and treated for a diagnosed right shoulder disability. A January 2009 VA examination report reflects that the examiner reviewed the claims file, including all of the relevant service records, in detail, and noted the Veteran's reported history of falling on his shoulder during boot camp with only five weeks left, and that he waited until around December 1966 to report problems with his right shoulder. The examiner noted that there was no record of any in-service injury in the Veteran's service treatment records, but that his reported pre-service right shoulder injury in February 1966 was well documented in the service treatment records. The Veteran reported that he began experiencing increasing pain in his right shoulder around 10 years ago, and that he currently had difficulty putting on a sleeve and that he was unable to lift his right arm above his head or sleep on his right side. On examination, significant atrophy and prominence of the dorsal surface of the right distal clavicle, weakness, and limitation of motion were noted. Diagnoses of right acromioclavicular joint injury and osteoarthritis right acromioclavicular joint with rotator cuff pathology involving supraspinatus, infraspinatus, and subscapularis were recorded. The examiner opined that, based on his review of the Veteran's service treatment records, the Veteran had a preexisting right shoulder condition upon entry into service, and that it was at least as likely as not that it increased in severity in service. In light of all of the service treatment records showing the Veteran's reported pre-service right shoulder injury while playing football in February 1966, the findings noted in the March 1967 medical board and conclusion that the Veteran had a preexisting right shoulder condition, and in light of the February 2010 opinion of the VA examiner that the Veteran had a preexisting right shoulder condition, the Board finds that there is clear and unmistakable evidence sufficient to rebut the presumption of soundness on entry that the Veteran had a preexisting right shoulder condition due to his reported February 1966 injury. The Board notes that there is no medical opinion of record that contradicts such a finding that has taken into account the Veteran's own reported history of a pre-service right shoulder injury. As noted above, once it has been determined that a disability clearly and unmistakably preexisted service, it must also be determined whether there is clear and unmistakable evidence that the disorder was not aggravated by service. VAOPGPREC 3-2003 (July 16, 2003). While the March 1967 medical board found that the Veteran's preexisting right shoulder condition was not aggravated by service as did the May 1967 VA examiner, the Board finds it significant that the February 2010 VA examiner concluded that it was at least as likely as not that the Veteran's preexisting right shoulder condition increased in severity due to his service. The Board recognizes that the VA examiner acknowledged that there was some degree of speculation in that opinion, and that a possible connection or one based on "speculation" is normally considered too tenuous a basis on which to grant service connection when adjudicating a claim pursuant to the standard of reasonable doubt. Specifically, the reasonable doubt doctrine requires that there be a "substantial" doubt and "one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102. However, as explained in VAOPGPREC 3-2003 (July 16, 2003), the issue of aggravation must be adjudicated under the more stringent standard of "clear and unmistakable" evidence. In essence, service connection for the preexisting disability can only be denied if there is clear and unmistakable evidence showing that the disability was not aggravated in service. In this instance, taking into account the February 2010 VA opinion, such a stringent standard is not met. The Board acknowledges an October 2008 medical opinion from Dr. M.K. in which he opined that the Veteran incurred a right shoulder acromioclavicular separation and rotator cuff tear in service and that his current right shoulder condition is casually related to his in-service right shoulder injury. The Board notes however, that this physician's opinion is based on an incorrect history that does not include the Veteran's pre-service history of a right shoulder injury, and it appears that Dr. M.K. did not review any of the veteran's service treatment records. For these reasons, the Board finds the opinion of Dr. M.K. to have no probative value. Regardless, however, the Board again notes that the February 2010 VA examiner found that it was at least as likely as not that the Veteran's preexisting disability was aggravated by service. The examiner specifically indicated that the regular activities of boot camp could "[c]ertainly" aggravate a preexisting acromiclavicular joint injury more so than would occur due to the mere natural progression of the disability. In summary, there is clear and unmistakable evidence that the Veteran had a preexisting acromioclavicular joint disability. However, it cannot reasonably be said that, when viewed in its totality, there is clear and unmistakable evidence that the Veteran's preexisting acromioclavicular joint disability, which the VA examiner indicated had also led over the years to osteoarthritis, was not aggravated by service. See VAOPGCPREC 3- 2003. Therefore, the Board will grant the Veteran's claim for service connection. ORDER Entitlement to service connection for the residuals of an acromioclavicular joint injury, to include osteoarthritis, is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs