Citation Nr: 1333180	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  10-16 610	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to an increased initial rating for right shoulder degenerative joint disease, status post arthroscopy, rated as 10 percent disabling for the period June 24, 2008 to April 6, 2009.

4.  Entitlement to an increased initial rating for right shoulder degenerative joint disease, status post arthroscopy rated as 10 percent disabling beginning January 1, 2010. 

5.  Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU).




REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Y. Curtis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1963 to May 1967.

This matter is before the Board of Veterans Appeals (Board) on appeal of a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought.

The issues have been recharacterized to comport with the evidence of record.

During the pendency of the appeal, the RO awarded a100 percent evaluation based on the need for convalescence for the service-connected right shoulder disability from April 7, 2009 to December 31, 2009.  On a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than a maximum benefit is awarded for the entire period on appeal.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  Where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent decision awarding less than the maximum available benefit for the entire period on appeal does not abrogate the appeal.  Id.  Thus, the issue remains in appellate status.

In July 2011 correspondence, the Veteran reported that he lost his job as a truck driver due to the pain and reduced range of motion he experienced in his right shoulder following surgery.  Additionally, VA medical records from April 2009 to June 2010 include several letters indicating that the Veteran should not return to work.  When evidence of unemployability is submitted during the course of an appeal for an increased rating, a claim for TDIU will be considered as part of that increased rating claim.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  

The issue of entitlement to a TDIU and an increased rating for right shoulder degenerative joint disease, status post arthroscopy beginning January 1, 2010 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1.  The evidence for and against the Veteran's claim of service connection for bilateral hearing loss is in equipoise.   

2.  The evidence for and against the Veteran's claim of service connection for tinnitus is in equipoise.   

3.  For the period from June 24, 2008 to April 6, 2009, the Veteran's right shoulder degenerative joint disease, status post arthroscopy involved the major upper extremity and was manifested by limitation of motion at the shoulder level with pain, but without ankylosis.


CONCLUSIONS OF LAW

1. The criteria for service connection for a bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2. The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

3. The criteria for an initial 20 percent rating for a right shoulder disability for the period from June 24, 2008 to April 6, 2009, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010,  5200, 5201 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board is granting in full the benefit sought on appeal regarding the issues of service connection for bilateral hearing loss and tinnitus.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.

Additionally, the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for right shoulder degenerative joint disease, status post arthroscopy.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

I. Principles of Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted during active military service.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372   (Fed. Cir. 2007).  


When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

II. Facts and Analysis

The Veteran was afforded a VA examination in November 2008.  The examiner conducted an audiological examination of the Veteran, which included an interview and audiogram.  During the interview, the Veteran reported military noise exposure from gunfire and mortar explosives.  The Veteran also reported that he did not experience a high level of noise exposure as a truck driver.  Lastly, the Veteran stated that he experiences tinnitus in his right ear.

Results from the VA audiogram performed in November 2008 were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
45
60
75
LEFT
25
30
50
70
70

Speech discrimination testing was 96 percent in both ears.  The examiner diagnosed the Veteran with mild to moderate sensorineural hearing loss and tinnitus.  The results of the November 2008 audiogram show that at least one of the auditory thresholds in each ear was 40 decibels or more.  The Veteran has a bilateral hearing loss disability for VA purposes.  38 C.F.R. § 4.85.

The Veteran's personnel records indicate he served as an antitank assaultman  and participated in several combat operations and search and destroy missions in Vietnam between September 1965 and July 1966.  The Veteran's assertions regarding military noise exposure from gunfire and mortar explosives is consistent with the circumstances of his service.  The Veteran's exposure to acoustic trauma in service is conceded.  38 U.S.C.A. § 1154(a).

In August 1965, the Veteran complained of decreased hearing and was treated with an ear irrigation; however, no audiometric testing was performed at any time during service.

The Veteran's Separation Examination Report does not reflect a diagnosis of bilateral hearing loss or tinnitus.

A medical nexus between service and hearing loss diagnosed after service is not precluded by the lack of audiometric data reflecting hearing loss for VA purposes on separation from service.  Service connection may be established by evidence that the current hearing loss is causally related to service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The Veteran was afforded a VA audiometric examination in November 2008; however, the examiner reported that he could not formulate an opinion without resorting to speculation because the Veteran's service treatment records did not contain audiometric information and the Veteran "did not know" when his tinnitus started.

In his initial claim for service connection, and in his December 2008 notice of disagreement, the Veteran specifically claimed that his bilateral hearing loss and tinnitus were a direct result of his noise exposure in Vietnam; that he has been consistently bothered by his bilateral hearing loss and tinnitus since service; and that it began prior to his civilian career. The VA audiologist's statement that the Veteran "did not know" when his tinnitus started does not negate the Veteran's statements that both the hearing loss and tinnitus began in service.   

The Veteran is competent to report on the onset and continuity of his symptoms of hearing difficulties during service.  See Layno v. Brown, 6 Vet. App. 465, 469-71(1994).   

The sole probative evidence of a nexus are the Veteran's statements regarding the onset and continuity of his tinnitus and loss of hearing acuity.  The competent evidence of record is at least in equipoise with respect to whether the Veteran's bilateral hearing loss and tinnitus began in service and continued since service and service connection for both is warranted.

III. Principles of Increased Rating Claims

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of the two disability evaluations shall be applied, the higher is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).  

Diagnostic code 5003, degenerative arthritis, requires rating under limitation of motion of the affected joints, if such would result in a compensable disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a , Diagnostic Code 5003.

Diagnostic Code 5201 rates limitation of motion of the arm (shoulder).  A 20 percent rating contemplates limitation of motion of the major arm at shoulder level (90 degrees). A 30 percent rating contemplates limitation of motion of the major arm to midway between side and shoulder level (45 degrees).  A 40 percent rating is warranted for limitation of motion of the major arm to 25 degrees from the side. The 40 percent disability rating is the highest disability rating assignable under this Diagnostic Code. 38 C.F.R. § 4.71a , Diagnostic Code 5201.

Disability ratings from 20 to 80 percent are assignable under other Diagnostic Codes for various degrees of shoulder impairment resulting from such symptoms as: ankylosis; malunion with deformity; recurrent dislocation with guarding of movement; fibrous union, false flail joint; flail shoulder; or dislocation of the clavicle or scapula. None of these symptoms are shown to be present, so rating under these Diagnostic Codes is not warranted. 38 C.F.R. § 4.71a , Diagnostic Codes 5200, 5202, 5203.

In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).

IV. Facts and Analysis

From June 6, 2008 to April 6, 2009

VA treatment records from September 2008 to November 2008 show that the Veteran was treated twice for right shoulder pain.  During both visits, crepitation and tenderness along the shoulder joint were noted.  Additionally, range of motion testing repeatedly revealed abduction from 0 to 90 degrees and flexion from 0 to 90 degrees.  

On VA examination in November 2008, the Veteran reported experiencing pain and stiffness in his right shoulder.  The Veteran also reported experiencing severe flare ups every five to six weeks.  The reported flare ups lasted three to seven days and resulted in reduced range of motion in the Veteran's dominant, right shoulder.  The Veteran denied episodes of dislocation, subluxation, or locking.  

On physical examination, the Veteran exhibited forward flexion from 0 to 110 degrees with objective evidence of pain beginning at 90 degrees.  The Veteran also exhibited abduction from 0 to 120 degrees with objective evidence of pain at 100 degrees.  There was no additional loss of motion on repetitive use.  An MRI revealed a complete tear with retraction of the distal surspinatus tendon and the collapse of the subacromial space with superior migration of the humeral head.  The diagnosis was severe right shoulder degenerative joint disease.  The examiner noted that the Veteran's right shoulder degenerative joint disease would have a significant occupational impact due to the Veteran's difficulties reaching, lifting, and carrying items.

A 20 percent rating is warranted for limitation of motion of the major arm at shoulder level (90 degrees).  The medical evidence of record contains the results from range of motion testing on three occasions from September 2008 to November 2008.   During two range of motion tests, the Veteran's range of motion was limited to shoulder level.  During the November 2008 VA exam, however, the Veteran's forward flexion and abduction both exceeded shoulder level.  The evidence is in relative equipoise regarding whether the Veteran's range of motion exceeded shoulder level from June 2008 to April 6, 2009.  Resolving all doubt in favor of the Veteran, a 20 percent rating is warranted for June 2008 to April 6, 2009.

Extraschedular Consideration

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.  If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115   (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The Veteran's service-connected right shoulder degenerative joint disease is primarily manifested by pain and limited motion.  The Veteran's disability picture is contemplated by the rating schedule, the assigned scheduler evaluation for the service-connected right shoulder degenerative joint disease is adequate, and referral is not required.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).


ORDER

Service connection for a hearing loss disability is granted.

Service connection for tinnitus is granted.

A 20 percent evaluation for right shoulder degenerative joint disease, status post arthroscopy, is granted from June 24, 2008 to April 6, 2009.


REMAND

In a statement received July 2011, the Veteran stated that he lost his job and cannot work due to the pain and reduced range of motion he experiences.  The evidence of record indicates that the Veteran was unable to return to work following his April 2009 right shoulder surgery.  A claim for TDIU has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009)

Following the February 2010 statement of the case, a November 2011 VA examination regarding the Veteran's right shoulder was added to the claim file.  Additionally, the Veteran submitted additional statements and medical evidence relating to the severity of his right shoulder disability after January 1, 2010. The Veteran did not submit a waiver of his right of initial consideration of this evidence by the agency of original jurisdiction.  38 C.F.R. § 20.1304.  The RO must consider this evidence in the first instance.  

Accordingly, the case is REMANDED for the following action:

1.  Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A are fully complied with and satisfied with respect to the issue of entitlement to total disability rating based on individual unemployability.

2.  Request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to the claims for an increased evaluation for his service-connected right shoulder disability and TDIU.  Document all unsuccessful attempts to obtain such records.

3.  Obtain VA treatment records from January 2012 through the present.

4.  Schedule the Veteran for a VA examination by an appropriate medical professional to determine the severity of his right shoulder disability and to obtain a medical opinion as to whether his service-connected disabilities alone render him unemployable.  The entire claim file (i.e. the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

The examiner must describe the current impairment from the Veteran's right shoulder disability and opine as to whether the Veteran's service-connected disabilities alone render him unable to secure or follow a substantial, gainful occupation.  The examiner is to state the functions which would be difficult or impossible to do as a result of the associated service-connected disabilities.  If the Veteran's service connected disabilities do not render him unemployable, the examiner must suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities given his current skill set and educational background.

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 

5.  Then, readjudicate the Veteran's claims.  If either of the benefits sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative, and an appropriate period of time in which to respond.  Then, return the appeal to the Board for appellate review.

The appellant has the right to submit additional evidence and arguments 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 of Veterans' Appeals 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 2002 & Supp. 2011),




____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs