Citation Nr: 1311204 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-01 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to an initial compensable rating for tinnitus. 3. Entitlement to an initial rating in excess of 30 percent for a respiratory disorder, currently diagnosed as asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his Mother, and Stepfather ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from October 2000 to March 2001 and from January 2002 to July 2002 with service in Southwest Asia. The Veteran had additional unverified active duty service for training (ACDUTRA) with the California National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and January 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, and the Appeals Management Center (AMC) in Washington, D.C. In July 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. This case was previously before the Board in December 2010 when it was remanded for additional development. It has now returned to the Board for further appellate action. The issues of entitlement to increased initial ratings for tinnitus and asthma are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's left shoulder disability, diagnosed as a torn left rotator cuff and shoulder strain, were incurred due to an injury during a period of inactive duty service for training (INACDUTRA). CONCLUSION OF LAW Service connection for a left shoulder disability, diagnosed as a torn left rotator cuff and shoulder strain, is warranted. 38 U.S.C.A. §§ 101, 1110 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for a left shoulder disability as it was incurred during a National Guard drill weekend, or in the alternative, was incurred during active duty service in Southwest Asia in 2002. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The record clearly demonstrates a current disability; a January 2004 military pre-deployment health assessment notes a left rotator cuff tear and shoulder pain. The Veteran was also diagnosed with a left torn rotator cuff and shoulder strain upon VA examination in February 2012. Additionally, the record contains medical opinions linking the Veteran's shoulder injury to service. The February 2012 VA examiner provided an opinion in favor of the claim based on the Veteran's reported history of a left shoulder injury during a National Guard drill weekend in 2003. A private physician also issued a positive medical opinion in August 2011, again finding that the left shoulder disability was consistent with the Veteran's reports of an in-service injury. Thus, a current disability and a link between the disability and service is established. The Board must now determine whether the Veteran's disability was incurred or aggravated during a period of active service to allow for a grant of service connection. Under 38 U.S.C.A. § 101(24) "active military, naval, or air service includes active duty, any period of active duty service for training [ACDUTRA] during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training [INACDUTRA] from an injury incurred or aggravated in line of duty during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." The Veteran has alleged two possible etiologies for his left shoulder injury. In the January 2010 substantive appeal, he reported injuring his shoulder while on active duty in Southwest Asia in 2002 while carrying heavy weapons and equipment. Additionally, the Veteran and his mother (a senior non-commissioned officer in the California National Guard) testified in July 2011 that the Veteran's shoulder was injured during a National Guard drill weekend in 2003, after his return from deployment. The Veteran has therefore reported incurring a shoulder injury during a period of active duty service or in the alternative, during a period of INACDUTRA. However, the Board notes that the medical evidence linking the Veteran's disability to service is based on the Veteran's reports of a left shoulder injury during an INACDUTRA drill weekend in 2003. The record clearly verifies the Veteran's period of active duty service with the Army National Guard in Southwest Asia from January 2002 to July 2002. However, he also served with the California National Guard following his separation from active duty. For the purposes of determining service connection based on Reserve service, ACDUTRA means full-time training duty, where the service member is available for duty around-the-clock performed by the Reserve components. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Annual two-week training is an example of ACDUTRA. Inactive duty training (INACDUTRA) is training duty, other than full time, performed by the Reserve components. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or for injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. In other words, service connection is available for injuries, but not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). The Veteran's complete service treatment and personnel records are not included in the claims file; a July 2008 memorandum from the RO indicates that the records are unavailable. The Veteran's claims file was also misplaced and reconstructed in 2008, indicating that if complete service records were once part of the record they have also been misplaced. The Board must therefore rely on other evidence of record to determine whether the left shoulder injury occurred during a period of active service. In support of his claim, the Veteran's mother has provided several statements reporting her recollections that the Veteran returned from a drill weekend in November 2003 complaining of a left shoulder injury. The Veteran informed her that a line of duty determination had been initiated, but was later misplaced or improperly completed. The Veteran also testified in July 2011 that his left shoulder was injured during the 2003 drill weekend when he carried too much weight on a rough march. This testimony is consistent with the findings of a January 2004 pre-deployment health assessment that noted a torn left rotator cuff and shoulder pain for the past one and a half months. The Veteran was medically disqualified for mobilization, presumably based on the identified left shoulder condition. The Board finds that the Veteran and his mother have testified competently and credibly that his left shoulder injury was incurred during a period of INACTURA in November 2003. Although personnel records do not confirm the INACDUTRA, as noted above, the Veteran's complete service records are not available and were most likely misplaced along with the claims file in 2008. The Board notes that the Veteran had previously reported the incurrence of the shoulder injury in 2002 during active duty service, and a June 2009 letter from an officer present at the 2002 demobilization process includes a report that the Veteran's complained of shoulder pain at that time. Nevertheless, the medical and lay evidence of record is sufficient to establish the three elements necessary for service connection based on INACDUTRA in November 2003, and the Board finds that service connection is warranted for a left shoulder disability as it was incurred due to injury during a period of INACDUTRA. Finally, VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. ORDER Entitlement to service connection for a left shoulder disability, diagnosed as a torn left rotator cuff and shoulder strain, is granted. REMAND In a December 2010 decision, the Board awarded service connection for tinnitus and a respiratory disability diagnosed as asthma. The award of service connection was implemented in a January 2012 rating decision with an initial noncompensable and 30 percent evaluations assigned for tinnitus and asthma, respectively. Both ratings were effective March 24, 2008. In August 2012, the Veteran filed a notice of disagreement with January 2012 rating decision and the initial ratings assigned to tinnitus and asthma. The Veteran has not been provided a statement of the case (SOC) in response to the notice of disagreement and a remand is required for the issuance of a SOC on these issues. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a SOC to the appellant and his representative on the issues of entitlement to an initial compensable rating for tinnitus and entitlement to an initial rating in excess of 30 percent for a respiratory disability currently diagnosed as asthma. The Veteran should also be informed of the requirements to perfect an appeal with respect to these issues. 2. If the Veteran perfects an appeal with respect to these matters, ensure that any indicated development is completed before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs