Citation Nr: 1333452 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-17 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to an increased rating for bilateral hearing loss, rated as noncompensable prior to June 9, 2012; and as 10 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied an increased rating for left ear hearing loss and for service connection for a left shoulder disability. In an August 2008 rating decision, the RO continued those denials. The Veteran filed a timely notice of disagreement to that decision in July 2009. In February 2010, the RO granted service connection for right ear hearing loss and denied an increased rating for the, now, bilateral hearing loss disability. In January 2013, the RO increased the rating for bilateral hearing loss from 0 to 10 percent disabling, effective June 9, 2012. The Board notes that the Veteran also filed a timely notice of disagreement to the November 2007 and August 2008 rating decisions that denied service connection for otitis media and an increased rating for a cervical spine disability, and in March 2010, a statement of the case was issued as to those denials. However, the Veteran then filed a formal appeal, Form 9, in April 2010, specifically disagreeing with the denials of service connection for a left shoulder disability and an increased rating for bilateral hearing loss, only. A May 2010 supplemental statement of the case addressed those two issues only. Then, in June 2010, the Veteran filed another formal appeal, Form 9, stating his disagreement with "bilateral hearing loss and constant ringing, and pain in the left neck and shoulder." However, as to the issues of an increased rating for a cervical spine disability, or the "left neck," and for "ringing in the ears," the appeal was not timely. Accordingly, the Board interprets those statements to indicate that the Veteran wishes to file new claims for an increased rating for a cervical spine disability and for tinnitus. In March 2013, the Veteran testified before the Board at a hearing held at the RO. The Veteran did not testify as to those claims at his hearing. Thus, the Board refers the claims for an increased rating for a cervical spine disability and for an increased rating for tinnitus to the RO for adjudication. In August 2013, the Veteran submitted evidence directly to the Board, however, the evidence submitted consists only of duplicates of evidence already of record and for which the Veteran has waived RO jurisdiction. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a left shoulder disability. 2. Prior to June 9, 2012, bilateral hearing loss was manifested by no more than auditory acuity level VII in the left ear, and auditory acuity level I in the right ear. 3. Since June 9, 2012, bilateral hearing loss is manifested by no more than auditory acuity level VIII in the left ear, and auditory acuity level I in the right ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. Prior to June 9, 2012, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (DC) 6100 (2013). 3. Since June 9, 2012, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in a July 2007 letter, prior to the initial rating action on appeal. Relevant to the duty to assist, the VA has obtained the Veteran's service treatment records and post-service treatment records. The Veteran has not identified any additional outstanding treatment records to obtain. The Veteran has submitted the identified private audiology reports and has indicated that he receives his treatment at VA and in that regard, his VA treatment records have been obtained. The Board has also reviewed his Virtual VA records and his VBMS records, and notes no outstanding records not already considered by the RO. Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available and relevant records. Additionally, the Veteran was afforded VA examinations in August 2007, August 2009, February 2010, and June 2012 in order to adjudicate his service connection and increased rating claims. The Board finds that the VA examinations are adequate to decide the Veteran's claims, as they provide a well-reasoned opinion as to whether the Veteran suffers from a left shoulder disability and also comply with the rating criteria with regard to the Veteran's hearing loss disability. VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service Connection The Veteran contends that he currently suffers from a left shoulder disability that was caused or aggravated by his service, specifically, when he was hit in the side of the head with a rifle during basic training which caused him to suffer from a concussion and which lead to his service-connected hearing loss, tinnitus, and cervical spine disabilities. Alternatively, he contends that his service-connected cervical spine disability caused or aggravated his current left shoulder disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted with evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.309, credible lay evidence of continuous symptoms may establish service connection. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) . Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In this case, however, the service records and post-service records do not demonstrate that the Veteran sustained an injury to his left shoulder at the time that he was hit in the face with the rifle while in service. His February 1970 separation examination does reflect that he stated "yes" to having a "painful or trick shoulder or elbow," however, no left shoulder finding or diagnosis was made and the service records otherwise do not note any findings specific to the left shoulder. Significantly, post-service VA examination reports dated in the 1970s and in 1990s do not demonstrate any left shoulder complaints or disability. VA treatment records dated beginning in July 2007 reflect that the Veteran was having pain in the left neck, left shoulder, and left ear. He was very tight at the left trapezius and shoulder region. He reported that he had had shoulder trouble for many years. Physical therapy was recommended. In August 2007, cervical spine x-rays showed degenerative disc disease and neural encroachment of the cervical vertebrae. In September 2008, the Veteran was being followed for degenerative disc disease of the cervical spine. There was a cystic structure in the right glenohumeral joint, but there was no indication of a left shoulder disability. On February 2010 VA examination, the Veteran reported left shoulder pain beginning in the late 1970s without injury. He had not had surgery. He had pain when he lifted or stretched with his left arm, though he complained of pain that was in his neck and then pointed to the trapezius/supraspinatus regions. Examination of the left shoulder showed no tenderness to palpation or muscle spasm. There was pain on range of motion, however, that was not in the shoulder joint. There was slight tenderness at the left trapezius/supraspinatus muscle region without muscle spasm. X-ray of the shoulder was normal. The examiner found that there was no left shoulder joint condition. The shoulder was normal. Rather, the Veteran's symptoms in the left trapezius/supraspinatus region were part and parcel of his cervical spine disability. Thus, there was no left shoulder disability to relate to the cervical spine disability. In this case, the Board finds that there is no indication that the Veteran currently has a diagnosed left shoulder disability. Though he has complained of left shoulder pain, and there are findings of some tenderness, pain and tenderness alone are not analogous to disability. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The Veteran has not identified any other evidence to substantiate his claim. Accordingly, service connection for a left shoulder disability must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that the Veteran has contended on his own behalf that he has a left shoulder disability related to his military service or to his service-connected cervical spine disability. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). While the Veteran is competent to state that he had in-service symptoms of left shoulder pain, or left shoulder pain that appears to him to be related to his cervical spine disability, the record does not show that he has a diagnosed left shoulder disability. Moreover, the Board finds that the Veteran has provided only conclusory statements regarding his contended left shoulder disability, whereas the 2010 VA examiner provided sound medical judgment in stating that the Veteran did not have a current disability. That conclusion purports with the other medical evidence of record. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim for service connection for a left shoulder disability, therefore that claim must be denied. Increased Rating The Veteran contends that he has suffered from severe hearing loss for many decades due to an injury in service and that he has trouble hearing in almost any circumstance, causing him pain and hardship. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected bilateral hearing loss is rated as 0 percent disabling prior to June 9, 2012, and as 10 percent disabling thereafter, under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In this case, the Veteran's left ear hearing loss meets the criteria for an exceptional pattern and the Board will apply both sets of criteria to his claim. At the outset, the Board notes that the Veteran has submitted a variety of private audiograms dated in January 2008, June 2009, March 2010, June 2011, and March 2013. However, these audiograms do not specify that Maryland CNC speech discrimination tests were conducted, and some do not have the results of speech discrimination tests at all. Thus, the Board finds that these documents are not adequate for rating purposes, as the rating criteria is specific in stating that Maryland CNC speech discrimination tests must be used. Significantly, a review of the private audiograms does not suggest hearing loss that differs from that found on the VA examinations conducted during the appeal period such that a remand for further evaluation would be necessary. Turning to the probative and competent evidence of record, on August 2007 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 25 25 LEFT 70 75 70 65 100 The puretone threshold average was 24 in the right ear and 78 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 in the left ear. On August 2009 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 40 45 55 LEFT 80 75 75 70 100 The puretone threshold average was 44 in the right ear and 80 in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 88 in the left ear. On June 2012 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 45 45 60 LEFT 90 90 85 80 105+ The puretone threshold average was 49 in the right ear and 90 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 84 in the left ear. In this case, for the left ear, the average pure tone threshold of 78, 80, and 90 decibels warrants a designation of Roman Numeral VIII at the highest, under Table VIA, for exceptional hearing loss, of 38 C.F.R. § 4.85. Because the Veteran has high speech discrimination scores, using Table VIA affords him the higher Roman Numeral for rating purposes. For the right ear, the average pure tone threshold of 24, 44, and 49 decibels, along with a speech discrimination scores of 96, 100, and 92 percent, warrants a designation of Roman Numeral I at the highest, under Table VI of 38 C.F.R. § 4.85. Under Table VII of 38 C.F.R. § 4.85, where the left ear is Roman Numeral VIII and the right ear is Roman Numeral I, the appropriate rating is 0 percent under DC 6100. The Board notes that the Veteran was granted a 10 percent rating in January 2013, however, even at that time, his hearing loss did not meet a compensable evaluation. Therefore, he is already in receipt of a higher compensation. In this case, the Board finds that the requirements for a higher rating are not met based on the demonstrated levels of hearing impairment, emphasizing that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Thus, a compensable rating for bilateral hearing loss prior to June 9, 2012, and a rating higher than 10 percent thereafter, must be denied. III. Other Considerations A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). While the Veteran has testified that his hearing loss interferes with his ability to hear from behind and interferes with his daily functioning, a letter from his employer in October 2010 shows that he is employed as a security guard. Because the evidence demonstrates that he is currently employed, and he has not refuted that contention or stated that he has since lost that employment, consideration of TDIU is not warranted. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected hearing loss. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The symptoms associated with the Veteran's bilateral hearing loss are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate. The Board has considered the functional impact of the Veteran's bilateral hearing loss. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In that regard, the Board notes the Veteran's testimony that he has severe difficulty hearing, lay statements from his family corroborating his difficulty hearing in many situations, as well as an October 2010 letter from the Veteran's employer stating that the Veteran had trouble hearing on the job because he was not wearing his hearing aid. He would talk loudly and not respond when someone called his name. However, the Board finds that functional impact has been taken into account by the exceptional hearing pattern loss specifically accounted for in the rating schedule. The rating schedule took into account his severe left ear hearing loss without consideration of his high speech discrimination scores in order to afford him a higher rating, however, his disability did not meet that level. Moreover, his employer stated that he needed to wear a hearing aid and was not doing so. Simply, the rating criteria contemplate the Veteran's symptoms, bilateral hearing loss that differs in each ear. Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that an increased rating for the Veteran's bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left shoulder disability is denied. Prior to June 9, 2012, a compensable rating for bilateral hearing loss is denied. Since June 9, 2012, a rating in excess of 10 percent for bilateral hearing loss is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs