Citation Nr: 22002145 Decision Date: 01/14/22 Archive Date: 01/14/22 DOCKET NO. 17-25 492 DATE: January 14, 2022 ORDER Entitlement to a disability evaluation in excess of 30 percent for sinusitis has been withdrawn, and the appeal is dismissed. Entitlement to service connection for a right shoulder disability is granted. FINDINGS OF FACT 1. During his August 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran and his attorney indicated his intent to withdraw the issue of entitlement to a disability evaluation for sinusitis in excess of 30 percent. 2. The evidence of record supports a finding the Veteran's right shoulder disability is proximately due to the Veteran's December 2009 motor vehicle accident. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to a disability evaluation for sinusitis in excess of 30 percent have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from June 2004 to August 2011. The Veteran testified before the Board at a virtual hearing in August 2021. A transcript has been associated with the record. 1. Entitlement to a disability evaluation in excess of 30 percent for sinusitis has been withdrawn. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Here, in August 2021, the Veteran's and his attorney requested that the issue of entitlement to an increased rating for sinusitis be withdrawn. The Veteran, who was present at the hearing, confirmed his desire to withdraw the issues after being informed of the consequences of the withdrawal. The Board finds the statement to be clear, informed and unambiguous. As such, the Veteran has withdrawn his appeal concerning this issue, and there remain no allegations of error of fact or law for appellate consideration. 2. Entitlement to service connection for a right shoulder disability is granted. The Veteran contends that he has a current degenerative right shoulder disability, which manifested within one year of discharge, that is a result of his December 2009 motor vehicle accident. See August 2021 Board Hearing Transcript. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board concludes that the Veteran has a current degenerative right shoulder disability that is related to his December 2009 motor vehicle accident. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In December 2009, while on his drive home from work, the Veteran was involved in a head-on collision. There was major damage to both cars. The Veteran needed to be extricated from his vehicle and was not ambulatory. He was brought to the emergency room on a full spine board, awake and alert. The intake report noted "obvious trauma to the entire chest with ecchymosis [sp.] and pain." The Veteran suffered a right hip dislocation and fracture (right associated transverse and posterior wall acetabular fracture), which was repaired with open reduction internal fixation (ORIF) surgery, bilateral rib fractures (first and second ribs; these ribs are closest to the head), a small right hemothorax, and bilateral lung contusions. See December 2009 Hospitalization and Triage Records; February 2011 X-ray Reports. As a result of the accident, the Veteran was determined to be unfit for duty, due to chronic right hip pain and related conditions, and separated from the Marine Corps following the completion of Physical Evaluation Board proceedings. See May 2011 Physical Evaluation Board Proceedings. Following service, the medical records show that the Veteran first sought treatment for his right shoulder within one year of discharge. In June 2012, the Veteran complained of experiencing right shoulder pain for the past couple of months, noting that he did not know how he had been injured, had not had a workup yet, and took ibuprofen to manage the pain, with some success. See June 2012 VA Primary Care Attending Note. In August 2012, the Veteran again complained of right shoulder pain, which he had been experiencing for the prior five months, and which had gradually worsened. The Veteran stated that it "feels very similar to what went with my right hip and I feel like [I have] torn a labrum." See August 2012 VA Primary Care Progress Note. An MRI imaging impression showed "degenerative changes in his acromioclavicular joint and mild rotator cuff tendinosis." See January 2013 VA MRI Imaging Report. A February 2017 physical therapy record documents the Veteran's report that he experienced right shoulder pain for several years while in the service, where he was involved in a motor vehicle accident in 2009, and that his pain was aggravated by working as a racecar mechanic. See February 2017 VA Physical Therapy Re-evaluation Note. A February 2013 letter from the Veteran's employer stated that the Veteran's "previous shoulder injury has affected his ability to perform his job" insofar as his shoulder injury affected his ability to engage in heavy lifting, overhead lifting, and other duties as a racecar mechanic. Lay statements from the Veteran's mother (C.M.) and wife (R.S.) report that the Veteran suffered from shoulder pain after his motor vehicle accident. The Veteran's mother and wife report that although the Veteran attempted to seek treatment initially, he was unable to effectively navigate medical providers to obtain this care and was encouraged to prioritize recovery from his hip injury. See August 2021 Lay Statements from C.M. and R.S.; see also August 2021 Board Hearing Transcript. In connection with his claim, the Veteran underwent a VA contract examination in April 2014. The examiner reasoned that the Veteran's right shoulder condition was at least as likely as not incurred caused by a motor vehicle accident that occurred in December 2009 because "the veteran states that the injury and pain started after the motor vehicle accident." The Veteran obtained a second positive nexus opinion in September 2014 from Dr. C.C. Dr. C.C. also found that it was as likely as not that the Veteran's shoulder condition arose during or was aggravated by the Veteran's military service, including the motor vehicle accident and injuries sustained by the Veteran while in service. Dr. C.C. found that the Veteran was experiencing acromioclavicular (AC) joint osteoarthritis with secondary shoulder impingement, accompanied by chronic and consistent pain. Dr. C.C. based his medical opinion on a physical examination of the Veteran and results of x-ray and MRI imaging studies. Here, there are two positive nexus opinions of record, medical evidence that the Veteran first sought treatment for his shoulder condition within one year of his discharge, and lay statements from the Veteran's employer, wife, and mother, reporting that the Veteran suffered from symptoms associated with a shoulder disability proximate to his December 2009 motor vehicle accident. The reports from the December 2009 motor vehicle accident underscore the severity of the Veteran's crash and clearly establish the Veteran suffered significant trauma in close proximity to his right shoulder. There are no negative nexus opinions of record against the Veteran's claim. (Continued on Next Page) Upon review of the record, the Board finds the evidence favors a finding that the Veteran's current right shoulder disability is proximately due to his December 2009 in-service motor vehicle accident. Accordingly, service connection for a right shoulder disability is granted. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.