Citation Nr: 1309028 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-17 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for residuals of a left shoulder separation/dislocation. REPRESENTATION Veteran represented by: Sean Kendall, Attorney-at-Law WITNESSES AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) from October 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In an October 13, 2009 rating decision, the RO denied entitlement to service connection for residuals of dislocated left shoulder/chronic left shoulder condition. Thereafter, the Veteran submitted additional evidence. In a decision dated October 21, 2009, the RO confirmed and continued the previous denial of service connection. A notice of disagreement was filed in November 2009, a statement of the case was issued in March 2010, and a substantive appeal was received in April 2010. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2013; the transcript is of record, contained in the Veteran's electronic Virtual VA folder. The issue of entitlement to service connection for right shoulder disability, claimed as due to left shoulder disability, was raised at the Board hearing (see T. at 16-17) but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. FINDING OF FACT Residuals of a left shoulder separation/dislocation are due to active service injury. CONCLUSION OF LAW The criteria for an award of service connection for residuals of a left shoulder separation/dislocation have been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the favorable decision as it relates to the issue of the grant of service connection for residuals, left shoulder separation/dislocation, no further discussion of VCAA is necessary at this point. Criteria & Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The Veteran claims entitlement to service connection for residuals of left shoulder separation/dislocation. In his December 2008 claim for compensation, he asserted that he dislocated his left shoulder in June 1991. Initially, the Board notes that the Veteran's service records are not available. Under such situations the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the caselaw does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). A June 16, 1992, private x-ray report of the left shoulder reflects an impression of anterior dislocation with subsequent relocation at left glenohumeral joint. On July 1, 1992, the Veteran sought VA treatment for his left shoulder. He explained that he had dislocated it 8 months prior, and had again dislocated it on June 16, 1992. He had been told that he might need surgery. The assessment was left dislocated shoulder, now reduced asymptomatic. A January 2011 VA outpatient treatment record reflects that the Veteran was seeking treatment for chronic left shoulder pain, with an initial shoulder injury in 1992. Another January 2011 VA outpatient treatment record reflects that the Veteran had chronic left shoulder global pain since his first dislocation in 1991. An April 2012 VA x-ray report reflects an impression of left shoulder degenerative/arthritic changes. In January 2013, the Veteran submitted a lay statement from S.S.T., a fellow soldier, who reported serving with the Veteran from 1988 until 1992. He recalled that the Veteran sustained an injury to his left shoulder requiring him to be on light duty for 12 weeks. S.S.T. specifically recalls this because he did most of the driving for the Veteran and learned to drive standard shift. In January 2013, the Veteran also submitted photos which purportedly show his torn uniform as a result of the left shoulder dislocation and subsequent treatment. He also submitted a photograph which shows him kicking a ball with a piece of white material around his neck. At the January 2013 Board hearing, the Veteran testified that in February 1992 his unit was conducting attacks in Twenty Nine Palms and during the operations they did hand-to-hand combat. He was doing a hip toss on one of his fellow Marines and he held on to the Veteran's shoulder and it popped out. (T. at 2.) He sought treatment and his shoulder was popped back into place and he returned to duty. (T. at 2-3.) He claims he was given light duty for approximately 6 weeks. (T. at 3.) He testified that the photos submitted depict his torn uniform and the signatures and comments of soldiers in his unit. (T. at 5-6.) The Veteran asserts that in the photo of him kicking a ball he was wearing his arm sling around his neck. (T. at 8.) Thereafter, in June 1992 he was playing softball and dislocated his shoulder again. (T. at 10.) In this case, the Board finds that the credible and competent evidence supports the Veteran's claim of service connection for left shoulder disability, specifically residuals of left shoulder separation/dislocation. The Board acknowledges that the Veteran has reported different dates that the shoulder injury occurred, to include June 1991 and February 1992, and he reported to a VA examiner that the injury occurred in or about October 1991 (8 months prior to the July 1992 treatment). The fact remains, however, that the Veteran did seek left shoulder treatment in June 1992, one month after separating from service, and he reported in the course of treatment in July 1992 that he had separated his left shoulder 8 months prior. This shoulder separation, therefore, would have occurred during his period of active service. As detailed, service treatment records are unavailable, and in applying the benefit of the doubt provisions, the Board finds the Veteran's description of his injury to be credible, especially in light of the statement from a fellow serviceman attesting that the Veteran suffered a shoulder injury and the photos which purportedly show his torn uniform and a sling. Likewise, more recent treatment records reference his original injury in rendering treatment for his current left shoulder disability. Thus, the competent medical evidence is also in support of the Veteran's claim. Accordingly, the Board concludes that the probative and persuasive evidence of record supports the Veteran's claim of service connection for residuals of left shoulder separation/dislocation. In applying the benefit of the doubt rule, service connection is warranted for residuals of left shoulder separation/dislocation. ORDER Entitlement service connection for residuals of a left shoulder separation/dislocation is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs