Citation Nr: 1333381 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-27 514 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a claimed left shoulder disorder. 2. Entitlement to service connection for a claimed right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from November 1996 to May 1997, May 2002 to December 2002, January 2003 to January 2004, January 2005 to January 2006, March 2006 to November 2006, December 2008 to January 2010, and May 2010 to April 2011. Information in the claims folder shows that he returned to active duty in July 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the RO, which in pertinent part denied service connection for a low back condition, right hand fracture, left shoulder disorder, right shoulder disorder, left knee disorder, right knee disorder, and bilateral hearing loss. In December 2010, the RO granted service connection for a distal fracture of the 3rd metacarpal right hand. This issue is resolved and is not for consideration. In May 2012, the Veteran testified at a hearing held before the undersigned Veterans Law Judge (VLJ) sitting at the RO. In June 2012, the Board remanded the remaining issues for further development. There was substantial compliance with the remand directives and in July 2013, the RO granted service connection for a low back disorder, a left knee disorder, and a right knee disorder. These issues are resolved and are no longer for consideration. In August 2013, the RO granted service connection for a right shoulder disorder. The rating decision also states that service connection was granted for right ear hearing loss. This appears to have been a typographical error as review of the reasons and bases, as well as the associated code sheet, shows that service connection was established for a left ear hearing loss. The right shoulder and left ear hearing loss issues are no longer for consideration. The issues of service connection for a left shoulder disorder and right ear hearing loss were addressed in the August 2013 Supplemental Statement of the Case and are the only issues remaining for consideration. The VBMS and Virtual VA folders have been reviewed. FINDINGS OF FACT 1. The Veteran is not shown to have a left shoulder disability; and there is no qualifying disability due to undiagnosed illness manifested by left shoulder joint or muscle pain. 2. In-service excessive noise exposure is established; however, the Veteran is not shown to have a right ear hearing loss disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The Veteran does not have a left shoulder disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 101, 1110, 1112, 1117, 1154, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.6, 3.303, 3.307, 3.309, 3.317 (2013). 2. The claim of service connection for a right ear hearing loss must be denied by operation of law. 38 U.S.C.A. §§ 1110, 1112, 1154, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in January 2008, prior to the rating decision in question, of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The Veteran was also provided notice of how VA assigns disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains VA medical center records and available service treatment and personnel records. VA made extensive efforts to obtain complete Reserve records, but ultimately determined that further efforts would be futile. The claims folder contains Formal Findings of Unavailability dated in May 2011, January 2013, and February 2013. The Veteran has been advised of the unavailability of records and provided the opportunity to submit any in his possession. The Veteran was provided VA joints examinations in March 2008 and June 2012. An addendum opinion was obtained in August 2013. The Veteran was provided VA audiology examinations in February 2008 and July 2012. The referenced examinations are considered adequate and further examination is not needed at this time. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonable affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Laws and Regulations In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §1110; 38 C.F.R. § 3.303. Active military service includes active duty, or any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military service also includes any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The Board observes that the regulation set forth at 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation 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, 1166-67 (Fed. Cir. 2004). Without a currently diagnosed disability, service connection may not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including arthritis and sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Presumptive periods do not apply to periods of active duty training and inactive duty training. See Biggins v. Derwinski, 1 Vet. App. 474 (1991). Service connection can also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). Pursuant to regulation, a "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317(a)(2). Manifestations of undiagnosed illness may include muscle pain and joint pain. 38 C.F.R. § 3.317(a)(2), (b). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(3), (4). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran asserts that a left shoulder disorder and right ear hearing loss had their onset during or are otherwise related to his multiple periods of active duty service. Left shoulder disorder In January 2008, the Veteran submitted a claim for service connection for the bilateral shoulder disorder. He reported that he injured his right shoulder in Iraq and was treated at Bethesda and the Newport Naval Hospital. He did not identify any specific injury related to the left shoulder, but stated that he had a cortisone shot for his back and shoulders. A review of service treatment records does not show complaints or findings referable to a left shoulder disorder. At the recent hearing, the Veteran testified that he has sustained a right shoulder injury during service. He did not testify regarding a specific left shoulder injury, but rather, appeared to relate his multiple orthopedic complaints to general wear and tear on the joints as a result of multiple deployments in service. The Veteran underwent a VA joints examination in March 2008. It was noted that he had just been discharged from active duty as an infantryman and had sustained wear and tear and mild injuries to the claimed areas, to include the shoulders. The Veteran's left shoulder was examined, and it was noted that he did not have any significant persistent complaints. The joint was not painful. Final diagnosis was that of normal exam and no functional impairment of the left shoulder. The Veteran underwent a VA shoulder and arm examination in June 2012. A diagnosis was provided pertaining to the right shoulder, but not the left. An additional examination was conducted in August 2013. The examiner noted that the Veteran had a normal left shoulder examination in June 2012. He also denied having any medical condition of the left shoulder. The examiner opined that the claimed left shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of his opinion, the examiner stated that the Veteran had a normal left shoulder examination and that there was no medical condition in the left shoulder that was related to military service. On review, the evidence of record does not show a currently diagnosed left shoulder disorder and service connection on a direct basis or as a chronic presumptive is not established. See Brammer. In making this determination, the Board acknowledges that the Veteran is competent to report symptoms of disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran's statements, however, do not outweigh the objective clinical evidence of record. The Veteran has multiple tours in the Southwest Asia theater of operations and is a Persian Gulf veteran. See 38 C.F.R. § 3.317(e). The Veteran does not contend that his left shoulder complaints are related to undiagnosed illness. Nonetheless, in the absence of a current diagnosis, the Board has considered whether the undiagnosed illness provisions are for application. On review, the Veteran's left shoulder examinations have been objectively normal, and there is no evidence of chronic qualifying disability manifested by joint or muscle pain that can be linked due to an undiagnosed illness. Thus, service connection is also not warranted pursuant to 38 C.F.R. § 3.317. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Right ear hearing loss In his January 2008 claim, the Veteran stated that his hearing loss was the result of constant exposure to weapons firing in the war zone and during training. At the May 2012 hearing, the Veteran reported significant in-service noise exposure. The service records establish that the Veteran participated in combat and his reports are fully consistent with the circumstances of his service. In-service acoustic trauma is established. See 38 U.S.C.A. § 1154(b). As set forth in the introduction, service connection for left ear hearing loss has been established as directly related to in-service noise exposure. The question in this claim, however, is whether the Veteran currently meets VA's requirements for a right ear hearing loss disability. For VA purposes, impaired 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. 38 C.F.R. § 3.385. The Veteran underwent numerous audiograms during service, and these have been reviewed. These audiograms do not show a right ear hearing loss disability for VA compensation purposes. The Veteran underwent a VA audiological examination in February 2008. At that time, puretone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were: 0, 5, 5, 5 and 10, respectively. Speech recognition score in the right ear was 98 percent. The right side was described as clinically normal and degree of loss was "not applicable". The examiner stated that the Veteran's hearing was within normal limits for all frequencies tested. Thus, an etiology opinion was not provided. The Veteran underwent a private audiological evaluation in April 2008. Right ear hearing was described as within normal limits. The Veteran most recently underwent a VA audiology examination in July 2012. Puretone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000 and 4000 Hertz were: 25, 25, 20, 15 and 20, respectively. Speech recognition score in the right ear was 98 percent. The diagnosis for the right ear was that of normal hearing. On review, the Board has considered and acknowledges the Veteran's combat service as well as significant in-service noise exposure. The evidence of record, however, does not show a hearing loss disability for VA compensation purposes in the right ear. Accordingly, on this record, service connection must be denied at this time as there is no disability as required by 38 C.F.R. § 3.385. See Brammer. ORDER Service connection for a claimed left shoulder disorder is denied. The claim of service connection for a right ear hearing loss disability is denied by law. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs