Citation Nr: 1327497	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  09-12 907	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for a left shoulder disability. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and [redacted]


ATTORNEY FOR THE BOARD

M. Riley, Counsel 


INTRODUCTION

The Veteran served on active duty from June 1957 to June 1959.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  

In August 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is of record.

The Board remanded the case for further action by the originating agency in October 2012.  The case has now returned to the Board for further appellate action.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's left shoulder disability, currently diagnosed as residuals of a left clavicle fracture with nonunion and degenerative joint disease, is etiologically related to active duty service.


CONCLUSION OF LAW

Service connection for a left shoulder disability, currently diagnosed as residuals of a left clavicle fracture with nonunion and degenerative joint disease, is warranted.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 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 due to an injury during active duty service.  He testified in August 2012 that he broke his shoulder in April or May 1959 after tripping on a root while performing maneuvers in Germany.  A cast was applied in Stuttgart, Germany and the Veteran received additional treatment at an Army Hospital in Fort Sheridan, Illinois.  The shoulder cast was removed three months later in Dearborn, Michigan.  The Veteran also reported experiencing pain in his shoulder since the 1959 injury and testified that has never been able to sleep on his left side. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 

The record establishes the presence of a current disability.  Treatment records from the Loma Linda VA Medical Center (VAMC) document complaints of left shoulder pain dating from January 2005.  An October 2007 MRI also demonstrated mild degenerative changes in the left humeral head while a November 2007 CT scan showed an old fracture of the left clavicle with nonunion.  Upon VA examination in April 2013, the Veteran was diagnosed with a nonunion clavicle fracture and mild degenerative joint disease of the left shoulder.  

The Board also finds an in-service injury is demonstrated.  Although service records are not available due to destruction in a fire at the National Personnel Records Center (NPRC) in July 1973, the Veteran provided credible testimony of an in-service shoulder fracture during the August 2012 videoconference hearing.  The Veteran has also submitted lay statements from his brothers verifying that he returned from active duty service with a shoulder injury and cast.  The Veteran is competent to describe injuries that occurred during active duty and his brothers are also competent to report their personal observations of his physical state following his discharge from service.  The Board will resolve all doubt in his favor and find that the first two elements of service connection-a current disability and in-service injury-are demonstrated.  

The Board also finds that the competent evidence of record establishes a nexus between the Veteran's current left shoulder disability and active duty service.  After physically examining the Veteran and reviewing the claims file in April 2013, the VA examiner concluded it would require speculation to provide a medical opinion addressing the etiology of the Veteran's left shoulder disability.  The examiner noted that there were no service treatment records available for review and no medical evidence of a disability until more than 40 years after military service.  However, the VA examiner also stated that the Veteran's description of his 1959 injury was consistent with a fractured clavicle and fractures of this nature most often result in posttraumatic arthritis.  Radiographs of the left shoulder from the Loma Linda VAMC clearly demonstrate residuals of an old fractured clavicle and the Veteran's VA physicians appear to have accepted the in-service injury as the cause of the current shoulder disability.  The Board will resolve any doubt in favor of the Veteran and find that the competent evidence establishes a nexus between the current left shoulder disability and the in-service clavicle fracture.  All three elements of service connection are therefore present and the claim is granted.  

As a final matter, the Board finds that VA has substantially satisfied the duties to notify and assist.  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 residuals of a left clavicle fracture with nonunion and degenerative joint disease is granted.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs