Citation Nr: 1327990 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 11-09 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right shoulder coracoacromial ligament strain. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served in the Army Reserves from April 2002 to April 2010, including active duty during June 2003 to February 2004, April 2005 to July 2006 and December 2007 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's right shoulder coracoacromial ligament strain is as likely as not attributable to his active military service. CONCLUSION OF LAW The criteria for service connection for a right shoulder coracoacromial ligament strain are met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for a right shoulder coracoacromial ligament strain, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. The Veteran contends that service connection is warranted for a right shoulder coracoacromial ligament strain. He believes the shoulder strain was caused by carrying heavy combat loads during three tours in Afghanistan. The Veteran asserts after his third tour, during his out process medical examination, he expressed concern with regard to his right shoulder and was advised to seek treatment once he returned home. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). To establish service connection for a present disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a). The Veteran satisfies the existence of the present disability standard with regard to his right shoulder coracoacromial ligament strain. In January 2010, the Veteran underwent a magnetic resonance imaging test (MRI) as an addendum to his November 2009 VA examination and was diagnosed with a right shoulder coracoacromial ligament strain. In June 2012, the Veteran underwent another VA examination during which he was not diagnosed with a right shoulder coracoacromial ligament strain. However, the June 2012 examiner did not conduct an MRI, which was the method used to diagnose the strain in January 2010. Thus, the Board finds the Veteran does a current disability in the form of a right shoulder coracoacromial ligament strain. The requirement for a current disability is satisfied if the disability is present at any point during the claim or appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board finds that the Veteran sustained a right shoulder coracoacromial ligament strain during service. The Veteran's DD-214 forms list his military occupation as a civil affairs specialist and states the Veteran had service in Afghanistan and received a Combat Action Badge. The Veteran engaged in combat during active service and his statements are consistent with the circumstances and conditions of such service, thus the lay evidence is sufficient proof of service-connection of his right shoulder coracoacromial ligament strain when all reasonable doubt is resolved in his favor, notwithstanding that there is no official record of such incurrence during service. 38 U.S.C.A. § 1154(b) (West 2002). Thus, the element of the incurrence of an in-service injury is met for a right shoulder coracoacromial ligament strain. In this case, the Veteran is competent to describe the symptoms of shoulder pain that he is experiencing and when the symptoms onset. Furthermore, the observation that carrying combat loads could cause shoulder problems is within the realm of common medical knowledge, thus the Veteran's lay belief could have sufficient weight to establish the nexus element. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). At the June 2012 VA examination the Veteran complained of pain that comes and goes. At the November 2009 examination, the Veteran reported he experienced shoulder pain, stiffness, lack of endurance, fatigability and flare-ups. The Veteran is competent to report on these symptoms as they are based on his experience and personal knowledge and come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is credible with respect to his assertions of experiencing shoulder pain in service and since service. His statements are credible because they are consistent in that he maintains the shoulder pain began while he was in service. The Veteran filed his claim for a right shoulder condition in March 2009 and he asserted the shoulder pain was due to carrying heavy combat loads but did not state a specific date the injury began. At the November 2009 VA examination, the Veteran reported that shoulder pain had existed for three years. At the June 2012 VA examination, the notes indicate the Veteran claims his right shoulder coracoacromial ligament strain was incurred between December 2007 and January 2009. These are consistent statements that show the Veteran maintains the right shoulder condition began during service. Additionally, the Veteran is credible as he provided an explanation that he tried to seek treatment in service but was told to wait until he returned home. The Veteran filed the claim after returning home and while in reserve status. Here, the Board finds the Veteran's statements as to the onset of his shoulder pain to be credible and his statements are accorded significant evidentiary weight. Moreover, the VA June 2012 examination is flawed as it did not provide an MRI, which was the diagnostic tool in the prior examination addendum. Additionally, the medical opinion is of little evidentiary value because the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Veteran's credible statements as to the onset of his shoulder pain are sufficient to outweigh the opinion of the examiner in the June 2012 VA examination. A Veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a Veteran's service records, or for which he seeks a service connection [,] must be considered on the basis of . . . all pertinent medical and lay evidence"; see 38 U.S.C.A. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). The Board finds that the Veteran is both competent and credible to report shoulder pain in service and since service. At the least, this evidence raises reasonable doubt as to whether the Veteran's right shoulder coracoacromial ligament strain is etiologically related to carrying a heavy combat loads in service. When resolving the benefit of the doubt in the Veteran's favor, the Board finds that the right shoulder coracoacromial ligament strain is in fact related to service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Thus, the Board concludes that service connection for a right shoulder coracoacromial ligament strain is warranted. ORDER Entitlement to service connection for a right shoulder coracoacromial ligament strain is granted. REMAND Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304 (2012). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2012). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The evidence shows that the hearing loss pre-existed the Veteran's military service. This finding is based on the Veteran's January 2002 enlistment examination, which shows auditory thresholds above normal levels for both the left ear and the right ear. The Veteran had right ear hearing loss that pre-existed service, as demonstrated by the 40 decibel auditory threshold at 500 Hertz, which meets VA standards for hearing loss. 38 C.F.R. § 3.385. The Veteran also had left ear hearing loss that pre-existed service, as demonstrated by the 30 decibel auditory threshold at 500 Hertz and 1000 Hertz. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that the threshold for normal hearing is 0 to 20 decibels and that defective hearing is characterized by hearing acuity which is greater than 20 decibels). Thus, the Veteran had bilateral hearing loss that preexisted service, and the presumption of soundness does not apply. 38 U.S.C.A. § 1111 (West 2002). Entitlement to service connection can still be granted, however, if the pre-existing disability was aggravated by service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Hearing loss was also demonstrated at subsequent military examinations in June 2003, January 2005 and May 2005. A hearing loss disability for VA purposes was not demonstrated during the November 2009 VA examination. However, the while November 2009 examiner notes that the Veteran was diagnosed hearing loss at his entrance to the military, the examiner does not discuss the pre-existing hearing loss in her opinion, which lessens its probative value. Nieves-Rodriguez, 22 Vet. App. at 304. At the audiological examination to be afforded on remand, the examiner must provide an opinion as to whether the pre-existing hearing loss underwent a worsening in service, and if so, whether it clearly and unmistakably was not aggravated beyond that which would be due to the natural progression of the disease. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (holding that if preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder). Based on the foregoing, the Board finds that another VA examination is necessary for the purpose of determining if the Veteran's hearing loss was aggravated during service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audio examination. All necessary testing must be accomplished. The examiner must be informed that bilateral hearing loss pre-existed service, based on the January 2002 audiometric testing. The entire claims file should be made available for review, to include a complete copy of this remand, and the examination report should reflect that such review occurred. The examiner is requested to identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The examiner should consider the effect of bilateral hearing loss on occupational and daily functioning of the Veteran. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). With respect to hearing loss, the examiner should determine if the disability worsened in service. If it worsened, the examiner is requested to provide an opinion as to whether the Veteran's hearing loss was clearly and unmistakably not aggravated by service. In other words, if there was an increase, was it clearly and unmistakably due to the natural progression of the disease. Aggravation means a permanent worsening beyond the natural progression of the disease. Clear and unmistakable evidence is obvious and manifest. The examiner must provide a complete rationale for any opinion expressed. 2. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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 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. 2013). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs