Citation Nr: 1337050	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  12-10 934	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for the residuals of a broken right clavicle.


ATTORNEY FOR THE BOARD

L. McCurdy, Associate Counsel


INTRODUCTION

The Veteran served on active duty, including service as an army cadet, from August 1977 to May 1987.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to the benefit currently sought on appeal.  The case file was transferred to the Regional Office in Nashville, Tennessee in August 2011 after the Veteran relocated.


FINDING OF FACT

The evidence of record indicates that the Veteran has residuals of a broken right clavicle that was sustained in service.


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for a grant of service connection for residuals of a broken right clavicle have been met.  38 U.S.C.A. §§ 1131, 1132, 5107 (West 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

At the outset, the Board notes that pursuant to 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 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013).  As the Board here grants the requested benefit, any failure on VA's part to meet these duties is harmless error.  Therefore, no further discussion as to these duties is necessary.

The Veteran contends that he currently has residuals of a broken right clavicle he sustained in 1980 as a cadet.

Under 38 C.F.R. § 3.6(b)(4), service as a cadet in the United States Military Academy is considered active duty and the Veteran is eligible to receive compensation for disabilities related to this service. 

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. § 1131 (West 2012); 38 C.F.R. § 3.303(a) (2013).  "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)).  Service connection may 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 C.F.R. § 3.303(d) (2013).

The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a) (West 2012); 38 C.F.R. § 3.303(a) (2013).  See Baldwin v. West, 13 Vet. App. 1 (1999).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  See 38 U.S.C.A. § 5107(b) (West 2012); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

As an initial matter, medical evidence of record raised a question of whether the Veteran had a pre-existing injury to his right clavicle.  Specifically, records from the Veteran's entrance to the Reserve Officers Training Corp (ROTC) reflect that the Veteran disclosed a broken right clavicle when he was 6 years old on his report of medical history.  A Veteran is presumed in sound condition except for defects noted when examined and accepted for service.  According to 38 C.F.R. § 3.304(b), the term "noted" describes only such conditions that are recorded in examination reports.  The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began.  See 38 C.F.R. § 3.304(b)(1).

The Veteran's ROTC examination found his upper extremities in normal condition and indicated that there was "[n]o evidence of fractured right clavicle, full range of motion, [and] no limitation."  The Veteran was found to be eligible for the service academy.  As no disability was noted on the examination, the Veteran is presumed sound upon his entrance into active service.  38 C.F.R. § 1132.

The Veteran contends that he broke his right clavicle in service while playing intramural football at West Point.  He further contends that the medical staff did not set the bone properly, causing the "broken ends of the bone [to] heal[] in an overlapped position" and "shorten[] the length of [his] right clavicle by more than an inch."  He contends that "the break is clearly visible to the eye as it creates a hump in [his] right shoulder which is visible through a t-shirt."  He states that the improper healing affects "strength and range of motion" and that the "muscle group on that shoulder continues to cramp and spasm."

The Veteran's service treatment records show that he was treated for a fracture of the right clavicle in September 1980.  The radiologist noted there was "approximately 1 1/2 cm of overlap of fragments" in the Veteran's right clavicle resulting from a "mid-shaft fracture."  After a follow-up appointment in October 1980, he was directed to seek physical therapy for a "prominent right clavicle fracture."  There were no subsequent complaints during the remainder of his service.  The Veteran has met the requirement of an in-service incurrence of a disability. 

The Veteran was afforded a VA QTC examination in March 2010 where he reported "pain in the right clavicle which occurs 1 time per month and each time lasts for 5 days."  He stated that the pain travelled to his "right shoulder muscle group and neck."  He also described the pain as "aching and sharp" and stated that the "pain and stiffness at times limit mobility making it difficult to turn [his] head."  The examiner noted the in-service history of the break in 1980 and that the Veteran was "never hospitalized nor had any surgery for this condition."  The examiner ordered x-rays of the clavicle which returned abnormal, citing "a healed mid-shaft right clavicular fracture with angulation."  The examiner verified the Veteran's range of motion in his right shoulder and found it to be within normal limits and noted that there was no sign of "edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat , deformity, malalignment, drainage, subluxation or guarding of movement."  The examiner diagnosed the Veteran with "an old healed fracture" and noted a "bump" on the right clavicle.     

The Veteran also submitted a copy of an x-ray from the Georgia Bone and Joint Clinic showing the "bump" on his right clavicle. 

The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., experiencing pain.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  With respect to the Veteran's contentions about the prevalence of the "hump" on his right clavicle since the healing of the break in 1980 and the pain he feels in his neck and right shoulder, the Board finds him both competent and credible. 

The Board finds that the evidence shows that the Veteran has a current disability described by the examiner as a "bump" on the right clavicle.  Additionally, the examiner linked this bump to an "old healed fracture" and noted the Veteran's 1980 right clavicle break.  Resolving all doubt in the Veteran's favor, the Board finds that the current disability is causally related to the in-service right clavicle break. 

Given the evidence above, the Board finds that the Veteran sustained a right clavicle fracture in service that, when viewed with the available evidence of record in a light most favorable to the Veteran, caused the residual "bump" described by the VA examiner.  Accordingly, service connection for the residuals of a broken right clavicle is warranted.


ORDER

Service connection for the residuals of a broken right clavicle is granted.




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs