Citation Nr: 1332715 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-19 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to a rating in excess of 10 percent for service-connected chronic right sternoclavicular strain with labral tear. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1998 to January 2003. He had additional service as a member of a National Guard unit, with a period of active duty from September 2003 to April 2004. Reserve duty status (inactive duty for training (INACDUTRA)) and active duty dates from July 2005 through June 2006 are of record and will be specifically referred to in the decision below when pertinent. There is additional unverified active duty service from June 13, 2007, to September 30, 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In a letter dated two days later in June 2007, the RO in Louisville, Kentucky, notified the Veteran of the decision. Due to the location of the Veteran's residence, jurisdiction of his appeal remains with the Louisville RO. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The issue of entitlement to a rating in excess of 10 percent for a right shoulder is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. See the REMAND section below. FINDINGS OF FACT 1. The Veteran sustained an injury to the left shoulder during drill service while on INACDUTRA on February 27, 2006. 2. The Veteran underwent left rotator cuff repair in December 2006; status post surgery records dated through 2009 show that he continues to report left shoulder pain. CONCLUSION OF LAW The criteria for service connection for a left acromioclavicular (AC) arthritis status post superior labral anterior-posterior (SLAP) repair have been met. 38 U.S.C.A. §§ 101(24), 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to service connection for a left shoulder disorder which represents a complete grant of the benefit sought on appeal. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). Active service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. See 38 U.S.C.A. § 101 (24) (West 2002 & Supp. 2012). Thus, in the case of inactive duty training, only if the individual suffered an "injury" during such service can disability resulting from such service provide a basis of eligibility for disability compensation. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks service connection for a left shoulder disability, which he contends is the result of an injury that occurred during drills. In support of his claim are three lay statements attesting to the fact that the Veteran suffered injury to the left shoulder during a drill weekend on January 8, 2006. Review of the record reflects that the Veteran was on inactive duty for training on that date. Post-service VA records show that the Veteran was seen on March 1, 2006. At that time, he reported that he had injured his left shoulder during drills on the Monday before (February 27, 2006). Records reflect that the Veteran was on inactive duty for training on that date. The injury occurred when he was lifting his gear bag and felt something tear. Subsequently dated records include a magnetic resonance imaging (MRI) test in March 2006 which showed fraying of the superior surface of the supraspinatous tendon with probable bursitis, and the possibility of anterior, superior labral tear with a labral cyst. In April 2006, the Veteran reported the onset of left shoulder pain from injury which occurred during drills approximately one month earlier. The Veteran underwent left shoulder rotator cuff repair in December 2006. VA treatment records show that he continued to report shoulder pain after surgery. His medication (e.g. Flexeril) was restarted when seen in April 2008. Records dated in 2009 show that shoulder pain continues to be listed as an ongoing problem. The Veteran's assertions and lay statements that he began having problems with his left shoulder during drills in 2006 are both competent and credible. Layno v. Brown, 6 Vet. App. 465, 471 (1994). As such, he has one of the elements required to substantiate a claim for service connection, namely evidence of an in-service injury. The Veteran also has another element required to substantiate a claim for service connection since the post-service medical evidence of record documents a current diagnosis of a left shoulder disorder - left AC arthritis status post SLAP repair. Lastly, the third element required to substantiate the claim for service connection is a medical nexus, and the evidence clearly reflects that the continuing left shoulder problem had its onset during a period of duty which allows for the granting of service connection for resulting injury. 38 U.S.C.A. § 101(24) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). To reiterate, the Veteran clearly sustained an injury to his left shoulder. While he and others reported that this injury occurred on January 8, 2006, contemporary treatment records in the claim file show that the left shoulder injury occurred on February 27, 2006. Service records show that this happened during a period of drills while he was serving in a reserve unit. Specifically, the Veteran was on INACDUTRA from February 24 through the 27 in 2006. As it is immaterial whether this incident occurred during a period of active or inactive duty training, the Veteran has one of the elements required to substantiate a claim for service connection, namely evidence of an in-service injury. See 38 U.S.C.A. § 101 (24) (2013). The Veteran also has another element required to substantiate a claim for service connection since the post-service medical evidence of record documents a current diagnosis of left shoulder complaints following left rotator cuff repair. Lastly, the medical evidence clearly reflects a medical nexus between the injury and post service problems. Given the foregoing, the Board finds that service connection for left AC arthritis status post SLAP repair is warranted. ORDER Service connection for left AC arthritis status post SLAP repair is granted. REMAND It is also asserted that a rating in excess of 10 percent is warranted for service-connected chronic right sternoclavicular strain with labral tear. Inasmuch as the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C.A. §§ 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2013). A review of the claims file reveals that additional development is needed in order to obtain outstanding VA and/or medical records relevant to the right shoulder claim. There are no treatment records available for review dated since 2009. Thus, on remand, all outstanding VA treatment records relevant to the Veteran's claims must be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). While on remand, the RO or the AMC should also contact the Veteran so that he may identify any outstanding private medical records that he wishes for VA to obtain on his behalf. See 38 C.F.R. § 3.159(c) (2013). Moreover, the Board finds that the record is void of contemporaneous assessments of the severity of the Veteran's service-connected right shoulder disability. In this regard, he was last afforded VA examination with respect to his claim in June 2006. He has continued to report shoulder since that time. His representative asserted in a 2012 brief that the right shoulder condition has increased in severity. In light of possible outstanding medical records and the need for a contemporaneous examination, the Board finds that a remand is necessary. See Colayong v. West, 12 Vet. App. 524, 532 (1999); Goss v. Brown, 9 Vet. App. 109, 114 (1996). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2013). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his right shoulder disorder, on appeal. Any records that are not currently included in the claims file should be obtained and added to the file. With any necessary authorization from the Veteran, the AMC should attempt to obtain copies of pertinent treatment records identified by the Veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and Veteran is to be informed of such. If pertinent records are received, the AMC should ensure that VCAA examination and medical opinion requirements under 38 C.F.R. § 3.159(c)(4) are met as to this issue. 2. After all outstanding medical records have been obtained, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his right shoulder disorder. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to and reviewed by the examiner in conjunction with the examination. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. 3. Then readjudicate the right shoulder disability claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a Supplemental Statement of the Case (SSOC) and afforded an appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board following the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs