Citation Nr: 1339609 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 11-05 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from October 1946 to April 1948. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in St. Petersburg, Florida. In April 2013, the Veteran testified at a Travel Board hearing at the RO in St. Petersburg, Florida. A transcript of the proceeding has been associated with the claims file. In May 2013, the Board remanded these matters for further development. Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review. In an informal hearing presentation dated in November 2013, the Veteran's representative raised the issues of service connection for right ear hearing loss and tinnitus. As these matters have not been adjudicated, they are referred to the agency of original jurisdiction for the appropriate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has a left shoulder disability that is etiologically related to a disease, injury, or event in service. 2. The Veteran has left ear hearing loss that is etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. A left shoulder disability was incurred in active service. See 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.102, 3.303 (2012). 2. Left ear hearing loss was incurred in active service. See 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claims for service connection for a left shoulder disability and for left ear hearing loss are being granted herein, as discussed below. As such, the Board finds that any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a 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). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. Id. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A. Left Shoulder The Veteran served on active duty in the Army from October 1946 to April 1948. He claims that he has a left shoulder disability due to a motor vehicle accident in service between September and October 1947. He reports that a civilian vehicle collided with his and he was thrown from the jeep and landed on his left shoulder (and the left side of his head). As an initial matter, the Board acknowledges that the National Personnel Records Center (NPRC) has indicated that the Veteran's service treatment records are fire-related (except that his enlistment examination report is of record), including any inpatient treatment records. Regardless, the Board finds the Veteran's account of the motor vehicle accident to be credible and, therefore, has conceded that an in-service injury to his left shoulder occurred. A December 2009 private orthopedic record from Dr. C.A. reflects that the Veteran reported experiencing pain and weakness in his left shoulder since 1995, and that the only history of injury was the in-service jeep accident in 1947. X-rays revealed marked degenerative joint disease. Dr. C.A. opined that the Veteran has really advanced degenerative changes in his left shoulder that are consistent with post-traumatic arthritis from the in-service jeep accident. A June 2013 private treatment record from Dr. V.D. reflects that she opined that given the absence of symptoms prior to the motor collision in 1947 as well as the absence of any subsequent real trauma to the left shoulder, the Veteran's left shoulder condition is more likely than not ("greater than 51 percent") related to the in-service motor vehicle accident. A July 2013 VA orthopedic consultation record reflects that the Veteran is right hand dominant and had full range of motion of the right shoulder, whereas the Veteran has noted as having an obvious deformity of the left shoulder, with limitation of motion and obvious atrophy of the deltoid muscle. The orthopedic surgeon opined that it is more likely than not that the Veteran's left shoulder disability was caused by the reported in-service motor vehicle accident. An August 2013 VA examination report (with an October 2013 addendum) reflects that the VA examiner recorded a diagnosis of severe glenohumeral osteoarthritis with exuberant osteophytosis at the glenohumeral joint, and opined that it is at least as likely as not that the Veteran's left shoulder disability is related to his service. The examiner reasoned that the Veteran's history of the development of the disability as he described it was conceivable and medically rational. The examiner noted that the Veteran explained that he had avoided moving his left shoulder for years, and that in that in the last 10 years, his left shoulder range of motion had become more limited and pain occurred. The examiner also noted that a December 2012 x-ray report reflected an impression of "slight flattening of the head of the left humerus which may be related to old trauma." In light of the above, the Board finds that a preponderance of the evidence is in favor of finding that the Veteran's left shoulder disability is related to his conceded in-service automobile accident. As shown above, the August 2013 VA examiner opined that the Veteran's left should disability is at least as likely as not related to his reported in-service automobile accident, and that opinion is supported by the December 2009 private opinion from Dr. C.A., the June 2013 private opinion from Dr. V.D., and the July 2013 opinion of the VA orthopedic surgeon. The Board notes that there is no medical opinion of record that contradicts the opinion of the August 2013 VA examiner. Therefore, for the reasons explained above, the Board finds that the preponderance of the competent and probative evidence of record supports the Veteran's claim for service connection for a left shoulder disability. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). B. Left Ear Hearing Loss The Veteran also claims that he has left ear hearing loss as a result of the automobile accident in service in which he reports he was thrown from the vehicle and landed on the left side of his head and has experienced decreased hearing acuity in his left ear ever since. Service connection for organic diseases of the nervous system, such as sensorineural hearing loss, may additionally be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112(a) (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2013). With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purpose of service connection. 38 C.F.R. § 3.385 (2012). "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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." See id. As explained above, the Board acknowledges that the Veteran's records are fire-related. Regardless, the Board finds the Veteran's reported history of being in an automobile accident to be credible and, therefore, the Board concedes that the Veteran injured the left side of his head in an automobile accident in service in 1947. A February 2013 private audiological treatment record from Professional Audiology Associates reflects that mild to severe moderate to severe sensorineural hearing loss was diagnosed, and the clinician opined that because the Veteran's hearing loss was asymmetrical (with only mild to severe sensorineural hearing loss diagnosed in the right ear), his hearing loss was consistent with his reported history of injuring his left ear in service in the automobile accident. An August 2013 VA examination report reflects the Veteran's reported history of the automobile accident in service in 1947, as well as a reported history of noise exposure in service due to artillery and rifle firing during basic training without the use of hearing protection. Audiometric testing revealed pure tone thresholds higher than 40 decibels from 1000 to 4000 Hertz in the left ear, thus, the criteria for a left ear hearing loss disability for VA purposes are met. See 38 C.F.R. § 3.385 (2013). With regard to whether the Veteran's left ear hearing loss is related to service, the August 2013 VA examiner opined that it is at least as likely as not that the Veteran's left ear hearing loss was due to in-service noise exposure because the degree of the Veteran's hearing loss was greater than would be expected from prebycusis in isolation. The examiner further opined that it was possible that the Veteran's hearing loss was due, at least in part, to the 1947 motor vehicle accident. In light of the above, the Board finds the preponderance of the evidence shows that the Veteran has left ear hearing loss that is related to service. The Board emphasizes that the August 2013 VA examiner's opinion linking the Veteran's left ear hearing loss to service is uncontradicted by any other competent medical evidence. In fact, it is supported by the February 2013 private audiological opinion. Therefore, the Board finds that the preponderance of the evidence is in favor of granting the Veteran's claim for service connection for a left ear hearing loss disability. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for left ear hearing loss is granted. Service connection for tinnitus is granted. ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs