Citation Nr: 0005529	
Decision Date: 02/29/00    Archive Date: 03/07/00

DOCKET NO.  97-23 994A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
Puerto Rico


THE ISSUE

Entitlement to restoration of service connection for right 
humeral fracture residuals including right shoulder adhesive 
capsulitis with contracture, right shoulder sub-acromial 
bursitis, and right bicipital and rotator cuff tendonitis.  


REPRESENTATION

Appellant represented by:	Public Advocate for Veterans 
Affairs, Puerto Rico 


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel
INTRODUCTION

The veteran had certified active duty for training with the 
United States Army Reserve from September 1974 to July 1975 
and additional active duty for training from June 12, 1993 to 
June 26, 1993.  In May 1994, the San Juan, Puerto Rico, 
Regional Office (RO) established service connection for right 
humeral fracture residuals including right shoulder adhesive 
capsulitis with contracture, right shoulder sub-acromial 
bursitis, and right bicipital and rotator cuff tendonitis and 
assigned a 10 percent evaluation for that disability.  In 
April 1996, the RO proposed to sever service connection for 
the veteran's right shoulder disability.  

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from a June 1996 RO decision which 
effectuated the proposed severance as of September 1, 1996.  
The veteran has been represented throughout this appeal by 
Puerto Rico Public Advocate for Veterans Affairs.  

The veteran may have submitted an informal claim for an 
increased disability evaluation for her right shoulder 
disability.  It appears that the RO has not had an 
opportunity to act upon the claim.  Absent an adjudication, a 
notice of disagreement, a statement of the case, and a 
substantive appeal, the Board does not have jurisdiction over 
the issue.  Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. 
Brown, 5 Vet. App. 554 (1993); Black v. Brown, 10 Vet. App. 
279, 284 (1997); Shockley v. West, 11 Vet. App. 208 (1998).  
Jurisdiction does matter and it is not "harmless" when the 
Department of Veterans Affairs (VA) fails to consider 
threshold jurisdictional issues during the claim adjudication 
process.  Furthermore, this Board Member cannot have 
jurisdiction of the issue.  38 C.F.R. § 19.13 (1999).  The 
United States Court of Appeals for Veterans Claims (Court) 
has noted that:  

Furthermore, 38 U.S.C.A. § 7105 (West 
1991) establishes a series of very 
specific, sequential, procedural steps 
that must be carried out by a claimant 
and the RO or other "agency of original 
jurisdiction" (AOJ) (see Machado v. 
Derwinski, 928 F.2d 389, 391 (Fed. Cir. 
1991)) before a claimant may secure 
"appellate review" by the BVA.  
Subsection (a) of that section 
establishes the basic framework for the 
appellate process, as follows: 
"Appellate review will be initiated by a 
notice of disagreement [(NOD)] and 
completed by a substantive appeal after a 
statement of the case is furnished as 
prescribed in this section."  Bernard v. 
Brown, 4 Vet. App. 384 (1994).  

All steps required for jurisdiction have not been satisfied.  
More recently, the Court again established that jurisdiction 
counts.  Specifically, the Court could not remand a matter 
over which it has no jurisdiction.  Hazan v. Gober, 10 Vet. 
App. 511(1997).  Therefore, the issue is referred to the RO 
for action as may be appropriate.  Black v. Brown, 10 Vet. 
App. 279 (1997).  If the veteran wishes to appeal from the 
decision, she has an obligation to file a timely notice of 
disagreement and a timely substantive appeal following the 
issuance of the statement of the case.  38 C.F.R. § 20.200 
(1999).  


FINDINGS OF FACT

1.  The RO has obtained all relevant evidence necessary for 
an equitable disposition of the veteran's appeal.  

2.  In May 1994, the RO established service connection for 
right humeral fracture residuals including right shoulder 
adhesive capsulitis with contracture, right shoulder 
sub-acromial bursitis, and right bicipital and rotator cuff 
tendonitis.  

3.  In June 1996, the RO severed service connection for right 
humeral fracture residuals including right shoulder adhesive 
capsulitis with contracture, right shoulder sub-acromial 
bursitis, and right bicipital and rotator cuff tendonitis 
upon its determination that the veteran's right shoulder 
disability was attributable wholly to her pre-existing right 
humeral fracture residuals and the disability had not been 
aggravated during active duty for training.  

4.  The evidence of record does not establish that the award 
of service connection for right humeral fracture residuals 
including right shoulder adhesive capsulitis with 
contracture, right shoulder sub-acromial bursitis, and right 
bicipital and rotator cuff tendonitis was clearly and 
unmistakably erroneous.  


CONCLUSION OF LAW

Service connection for right humeral fracture residuals 
including right shoulder adhesive capsulitis with 
contracture, right shoulder sub-acromial bursitis, and right 
bicipital and rotator cuff tendonitis is restored.  38 
C.F.R.§ 3.105(d) (1999).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Historical Review

The veteran's service medical records indicate that she 
complained of right shoulder pain in the area of the 
bicipital tendon on June 14, 1993.  She stated that she had 
sustained a right shoulder fracture at home in February 1993.  
An impression of probable bicipital tendonitis was advanced.  
A June 16, 1993 treatment entry notes that the veteran's 
right shoulder was struck by a door on June 15, 1993.  The 
veteran was diagnosed with an incompletely healed right 
humeral neck fracture.  Treating military medical personnel 
observed that the veteran's right humeral fracture was still 
healing; placed her right arm in a sling; and gave her a 
limited duty profile for the duration of her active duty for 
training.  A June 1993 Statement of Medical Examination and 
Duty Status relates that the veteran sustained a right 
humeral fracture in February 1993; her fracture was still 
healing when she was required to report for active duty for 
training; and she sustained "some aggravation" of her right 
shoulder disability secondary to her military duties as a 
driver and an incident in which her right upper extremity was 
struck by a barracks door.  

In a June 1993 written statement, the veteran conveyed that: 
she had injured her right shoulder at home in February 1993; 
had unsuccessfully attempted to get excused from her United 
States Army Reserve annual training by presenting a letter 
from her orthopedist to her company commander; experienced 
right shoulder discomfort on June 13, 1993; went to sick call 
on June 14, 1994 and was placed on a light duty profile; 
marched to the field and struck her right upper extremity on 
a billet door on February 15, 1993; and subsequently 
experienced increasing right shoulder symptoms.  

At an April 1994 VA examination for compensation purposes, 
the veteran reported that she sustained a right humeral 
fracture in February 1993; went on active duty for training 
with the United States Army Reserve in June 1993; reinjured 
her right shoulder during her training; and was subsequently 
treated with an arm sling and a cast.  The veteran was 
diagnosed with right humeral fracture residuals including 
right shoulder adhesive capsulitis with contracture, right 
shoulder sub-acromial bursitis, and right bicipital and 
rotator cuff tendonitis.  On May 25, 1994, the RO established 
service connection for right humeral fracture residuals 
including right shoulder adhesive capsulitis with 
contracture, right shoulder sub-acromial bursitis, and right 
bicipital and rotator cuff tendonitis.  

A 1995 United States Army Reserve Report of Investigation 
Line of Duty and Misconduct Status (DD 261) conveys that: the 
veteran sustained a right humeral neck fracture at her home 
in February 1993; she sought to be medically excused from 
active duty for training; the veteran's unit commander denied 
her request; she was involved in a June 15, 1993 accident 
while on active duty for training wherein she was struck by a 
barracks door; she was not in a condition to perform active 
duty for training; and her injury was incurred in the line of 
duty and not as the result of misconduct.  

In April 1995, the RO sought a VA medical opinion as to 
whether the veteran's pre-existing right humeral fracture was 
aggravated during her June 1993 period of active duty for 
training.  An April 1995 opinion from a VA physician states 
"[the] veteran['s] current disability is the result of the 
natural outcome or sequela of his pre-existing right humeral 
neck fracture."  The examining physician did not certify 
that, in the light of all accumulated evidence, the diagnosis 
on which service connection was predicated was clearly 
erroneous.  In April 1996, the RO proposed to sever service 
connection for right humeral fracture residuals including 
right shoulder adhesive capsulitis with contracture, right 
shoulder sub-acromial bursitis, and right bicipital and 
rotator cuff tendonitis.  The RO stated that:

During a routine handling of your claim 
for compensation benefits, we have found 
that the decision of May 25, 1995 
granting you service connection for your 
right shoulder was clearly and 
unmistakably erroneous.  The grant of 
service connection for your right 
shoulder was erroneous because it existed 
prior to service with no evidence to 
support that it worsen[ed] during [your] 
period of active duty for training 

In June 1996, the RO effectuated the proposed severance of 
service connection as of September 1, 1996.  

II.  Severance 

Generally, service connection may be granted for disability 
resulting from disease or injury incurred in or aggravated 
while performing active duty for training.  38 U.S.C.A. 
§§ 101(24), 106, 1110, 1131 (West 1991 & Supp. 1999).  The 
provisions of 38 C.F.R.§ 3.105 (1999) direct, in pertinent 
part, that:

(d)	Severance of service connection.  
Subject to the limitations contained in 
§§ 3.114 and 3.957, service connection 
will be severed only where evidence 
establishes that it is clearly and 
unmistakably erroneous (the burden of 
proof being upon the Government).  (Where 
service connection is severed because of 
a change in or interpretation of a law or 
Department of Veterans Affairs issue, the 
provisions of § 3.114 are for 
application.)  A change in diagnosis may 
be accepted as a basis for severance 
action if the examining physician or 
physicians or other proper medical 
authority certifies that, in the light of 
all accumulated evidence, the diagnosis 
on which service connection was 
predicated is clearly erroneous.  This 
certification must be accompanied by a 
summary of the facts, findings, and 
reasons supporting the conclusion.  When 
severance of service connection is 
considered warranted, a rating proposing 
severance will be prepared setting forth 
all material facts and reasons.  The 
claimant will be notified at his or her 
latest address of record of the 
contemplated action and furnished 
detailed reasons therefor and will be 
given 60 days for the presentation of 
additional evidence to show that service 
connection should be maintained.  Unless 
otherwise provided in paragraph (i) of 
this section, if additional evidence is 
not received within that period, final 
rating action will be taken and the award 
will be reduced or discontinued, if in 
order, effective the last day of the 
month in which a 60-day period from the 
date of notice to the beneficiary of the 
final rating action expires.  

The Court has clarified that:

Once service connection has been granted, 
38 C.F.R. § 3.105(d) (1991) provides that 
it can be withdrawn, but only after 
certain procedural safeguards have been 
complied with and the Secretary overcomes 
a high burden of proof ...   In effect, 
§ 3.105(d) places at least as high a 
burden of proof on the VA when it seeks 
to sever service connection as § 3.105(a) 
places upon an appellant seeking to have 
an unfavorable previous determination 
overturned.  Baughman v. Derwinski, 1 
Vet. App. 563, 566 (1991).  See also 
Wilson v. West, 11 Vet. App. 383 (1998).  

The Board observes that the veteran sustained a February 1993 
right humeral fracture prior to her June 1993 period of 
active duty for training and subsequently sustained an 
inservice right upper extremity trauma requiring medical 
attention when she was struck by a barracks door.  In May 
1994, the RO established service connection for right humeral 
fracture residuals including right shoulder adhesive 
capsulitis with contracture, right shoulder sub-acromial 
bursitis, and right bicipital and rotator cuff tendonitis 
based upon the veteran's service medical records.  In June 
1996, the RO severed service connection for right humeral 
fracture residuals including right shoulder adhesive 
capsulitis with contracture, right shoulder sub-acromial 
bursitis, and right bicipital and rotator cuff tendonitis 
apparently upon the uncertified April 1995 VA medical opinion 
that the veteran's pre-existing right humeral fracture was 
not aggravated during her June 1993 period of active duty for 
training.  

If it is the position of the RO that the opinion constitutes 
a change in diagnosis, the opinion does not constitute 
evidence which meets the criteria set forth in 38 
C.F.R.§ 3.105(d) (1999).  The examiner did not certify that 
any prior diagnosis was clearly erroneous.  

There is no doubt that a shoulder disorder preexisted service 
and the appellant has not alleged otherwise.  However, the 
issue before the Board is whether the grant was clearly and 
unmistakably erroneous.  In this regard, the service records 
reflect terms that include aggravation.  There is evidence of 
inservice trauma due to military duties and a specific 
trauma.  We are impressed with the fact that there was a 
medical evaluation board which determined that the disorder 
was incurred in line of duty, existed prior to service and 
was permanently aggravated by service.  Clearly, there is 
evidence that supports the claim for service connection.  
Against this background we are presented with a medical 
opinion that is limited to the following:

veterans current disability is the result 
of the natural outcome or sequela of his 
preexisting right humeral neck fracture.

Aside from the fact that the sex of the appellant is 
misidentified, there is a remarkable lack of reasoning 
contained in the opinion.  Since the issue is severance, 
rather than service connection, we are forced to conclude 
that clear and unmistakable error has not been identified.  
The grant of service connection is restored.


ORDER

Service connection for right humeral fracture residuals 
including right shoulder adhesive capsulitis with 
contracture, right shoulder sub-acromial bursitis, and right 
bicipital and rotator cuff tendonitis is restored.  



		
	H. N. SCHWARTZ
	Member, Board of Veterans' Appeals