Citation Nr: 1120767 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 07-07 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a left shoulder disorder, variously diagnosed as left shoulder impingement and degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran had three distinct periods of active service. He was in the Army from November 1982 to November 1986 and from May 1989 to November 1994. Subsequently, he joined the National Guard and was activated from June 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The case was previously before the Board in June 2008, when it was remanded for examination of the Veteran and medical opinions. The requested development has been completed. The Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. There was no entry examination conducted for the Veteran's third period of active duty; therefore, no defects, infirmities, or disorders were noted at entrance into this period of service. 2. There is clear and unmistakable evidence that the Veteran was diagnosed with left shoulder impingement prior to his third period of active service; he aggravated his left shoulder disorder when he fell during active duty. 3. The presumption of soundness has not been rebutted. 4. The Veteran was diagnosed with left shoulder impingement during service and he continued to complain of left shoulder pain since service; a current diagnosis of left shoulder impingement has been shown. CONCLUSION OF LAW A left shoulder disorder, variously diagnosed as left shoulder impingement and degenerative joint disease, was incurred in service. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2010). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2010). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2010). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A veteran will be presumed 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 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. §§ 1112, 1132; 38 C.F.R. § 3.304 (2006). History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) a veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also VAOPGCPREC 3- 2003. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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; 38 C.F.R. § 3.306(a). The Veteran claims entitlement to service connection based upon his third period of active duty. He asserts a left shoulder disability that was either incurred in, or aggravated by, this period of active duty. The Veteran entered onto his third period of active duty in June 2004. Service records do not include an entrance examination. Accordingly, no defects, infirmities, or disorders were noted at entrance. As such, he is entitled to the presumption of soundness unless there is clear and unmistakable evidence that a disorder preexisted service and was not aggravated by service. Private medical records dated December 2003 to March 2004 reveal that the Veteran was treated for complaints of left shoulder pain. Varying diagnoses included left shoulder impingement and left rotator cuff tear. Therefore, there is clear and unmistakable evidence that he had a preexisting left shoulder disorder. As noted above, in order to overcome the presumption of soundness, there must be clear and convincing evidence that the disorder was not aggravated by service. In this case, the evidence shows that the Veteran's left shoulder disorder was, in fact, aggravated by service. Specifically, records dated in February and March 2005 show that the Veteran fell on his left shoulder during service. He was treated for symptoms of left shoulder pain, including injection with medication. The diagnosis was left shoulder impingement. In addressing the issue of whether his fall resulted in an aggravation of a preexisting left shoulder disorder, an April 2010 VA examiner indicated that the Veteran required "acute treatment for aggravation of his left shoulder during service." Accordingly, the Board finds this medical opinion as clear and unmistakable evidence that a left shoulder disorder was aggravated by service. Therefore, although there is clear and unmistakable evidence of a preexisting left shoulder disorder, there is not clear and unmistakable evidence that it the left shoulder disorder was not aggravated by service. Accordingly, the presumption of soundness is not rebutted. Since the Veteran is presumed to have been sound upon entry into service, his claim for service connection must be addressed on a direct basis. Again, service treatment records dated in February and March 2005 show that the Veteran fell on his left shoulder during service. He was treated for symptoms of left shoulder pain, including injection of medication. The diagnosis was left shoulder impingement. Therefore, a left shoulder disorder was noted in service. He was discharged in December 2005. In a January 2006 VA examination, one month after the Veteran separated from service, he reported symptoms of left shoulder pain and weakness. Physical examination revealed limitation of abduction of the left shoulder to 140 degrees with complaints of pain and weakness. The diagnosis was left shoulder pain with possible tendonitis. As such, left shoulder pathology was noted shortly after discharge. In a June 2006 VA joints examination, the Veteran again reported symptoms of left shoulder pain. Range of motion testing of the left shoulder revealed some limitation of motion in all ranges secondary to pain. Magnetic Resonance Imaging (MRI) examination of the left shoulder revealed abnormalities including a potential posterior labrum tear and mild arthrosis of the shoulder joint. The diagnosis was "bilateral shoulder pain with AC joint arthrosis and degenerative change[s]." Again, left shoulder pathology was identified shortly after discharge. VA treatment records dated from 2006 to the present reveal periodic treatment for complaints of left shoulder pain; diagnoses include impingement syndrome and arthritis. Therefore, the Board finds that the Veteran had on-going symptoms related to the left shoulder. In the April 2010 VA examination, a diagnosis of left shoulder impingement was confirmed. As noted above, the Veteran was presumed sound on entry into service in June 2004. Service treatment records show that he fell and injured his left shoulder; the diagnosis was left shoulder impingement. Left shoulder pathology was noted shortly after discharge and reported on-going symptomatology of left shoulder pain dating from the injury during service until present. These assertions are credible and are supported by the medical evidence of record which confirms treatment for complaints of left shoulder pain from service until the present with diagnoses of left shoulder impingement. This provides a continuity of symptomatology of left shoulder pain dating from active service to the present. Accordingly, service connection for a left shoulder disorder, variously diagnosed as left shoulder impingement and degenerative joint disease, is warranted. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. ORDER Service connection for a left shoulder disorder, variously diagnosed as left shoulder impingement and degenerative joint disease, is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs