Citation Nr: 1752498 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-21 010A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for left hip disability. 4. Entitlement to service connection for right hip disability. 5. Entitlement to service connection for pinched nerve in the back. 6. Entitlement to service connection for right hand disability. 7. Entitlement to service connection for right arm, shoulder, and elbow disabilities. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1966 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Waco, Texas Regional Office (RO) of the Department of Veterans' Affairs (VA). The Veteran initially requested a Board hearing in relation to all of the issues on appeal. However, he subsequently withdrew these requests. The Board recognizes the withdrawal of the hearing requests. FINDINGS OF FACT 1. Current bilateral hearing loss and tinnitus are reasonably shown to be related to service. 2. The Veteran is not shown to have a current, chronic disability of either hip. 3. The Veteran is not shown to have any neurological disability associated with his service-connected low back disability other than left lower extremity radiculopathy, which is already service-connected. 4. The Veteran is not shown to have any current, chronic disability of the right hand, arm, elbow or shoulder other than a rotator cuff problem, which is not shown to be related to service. 5. The Veteran is reasonably shown to be unemployable due to his service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss and tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for bilateral hip disability, pinched nerve of the low back, right hand, right arm, right elbow and right shoulder disabilities are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, VA provided adequate notice in letters sent to the Veteran in April 2009, June 2009, October 2011 and January 2015. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The service treatment records, service personnel records, post-service VA treatment records and post-service private treatment records, including records of treatment during the Veteran's period of incarceration, are associated with the claims file. VA has provided multiple examinations in this case and the Board finds that they are adequate in relation to the claims for service connection for right shoulder, arm, elbow and hand disability and for service connection for pinched nerve in the back, particularly when considered in conjunction with the other medical evidence of record. Also, VA did not have a duty to provide an examination in relation to the claim for service connection for bilateral hip disability as it is not established that an event, injury or disease in relation to either hip occurred in service and the evidence does not indicate that any current hip disability may be related to service. In this regard, there is no medical opinion of record, which even suggests such a relationship and continuity of hip symptomatology since service is neither shown nor alleged. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Analysis A. Service connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §3.303. Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral hearing loss and tinnitus The evidence shows that the Veteran currently has bilateral hearing loss by VA standards as evidenced by VA examinations performed in August 2011 and August 2012. 38 C.F.R. § 3.385. Similarly, the evidence also reasonably shows that the Veteran has tinnitus. Also, the Veteran's service personnel records show that he served in combat and he has credibly testified that he was exposed to significant weapons noise. Consequently, acoustic trauma during service is also established. Regarding a potential nexus between the acoustic trauma and the current hearing loss both of the VA examiners found that they could not provide an opinion without resorting to speculation, primarily because the only audiometric testing done prior to the Veteran's separation was whispered voice testing, which was unreliable. Accordingly, given that it does not appear that the Veteran experienced acoustic trauma or significant noise exposure post-service and resolving reasonable doubt in his favor, the Board finds that a nexus between the acoustic trauma in service and the current hearing loss is also reasonably established. Additionally, as tinnitus is generally associated with bilateral hearing loss and with acoustic trauma; as there is no probative etiology opinion of record concerning tinnitus, and resolving reasonable doubt in the Veteran's favor, a nexus between the Veteran's current tinnitus and his acoustic trauma in service is also reasonably established. Accordingly, service connection for bilateral hearing loss and for tinnitus is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.385; Alemany, 9 Vet. App. 518 (1996). Bilateral Hip Disability The evidence of record does not establish that the Veteran has an actual, chronic disability of either hip. A July 1985 VA treatment record does show that the Veteran complained of pain in stiffness in the left hip. However, he was not diagnosed with any chronic left hip disability at that time. Also, the Veteran did suffer a gunshot wound to the left thigh/hamstring in February 1988 for which he required surgery. However, there is no indication that this wound caused any damage to either hip. In the absence of proof of current disability, there can be no valid claim of service connection. Thus, the Veteran's claim must be denied on this basis. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In addition, even assuming the Veteran does have some level of disability of either hip, there is no indication that any such disability became manifest in service or is otherwise related to service or any service connected disabilities. In this regard, the service treatment records are silent for any left or right hip problems and the earliest post-service evidence of any hip problems is the July 1985 VA record, which documents treatment occurring approximately 8 years after service. Such a lengthy interval of time between service and initial postservice manifestation of a "disability" for which service connection is sought is, of itself, a factor against a finding that the disability was incurred or aggravated in service. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, there is no medical opinion of record, which even suggests a relationship between any current hip problem and the Veteran's military service. Moreover, a relationship between any current hip problem and any of the Veteran's service-connected disabilities is neither shown nor alleged. Accordingly, lack of any manifestation of hip problems in service and lack of any nexus between any current hip problems and service or any service-connected disability presents an alternate basis for denying these claims. Pinched nerve in the back The Veteran alleges that he has pain and numbness in the buttocks, legs and feet and has primarily attributed these symptoms to his service connected low back disability. Notably, the Veteran is already service connected for radiculopathy of the left lower extremity associated with his service connected chronic lumbar strain and has been assigned a 20 percent rating for this disability. He has also received VA examinations, most recently in August 2015 to determine whether he has any right lower extremity radiculopathy but to date no such disability has been diagnosed. Also, at the August 2015 VA examination, the Veteran specifically reported that the lower extremity symptomatology associated with his low back disability was only affecting his left side. Additionally, there is no indication of any other neurological disability related to service or to any service-connected disability that is resulting in his pain and numbness in the lower extremities. Accordingly, at this time, the Board does not have a basis for awarding service connection for any additional neurological disability, aside from the already service-connected left lower extremity radiculopathy. If in the future, the Veteran is diagnosed with right lower extremity radiculopathy associated with his low back disability, he could consider filing a new claim for this disability. Right arm, shoulder and elbow and hand disability The evidence shows that the Veteran did experience a right arm monoparesis in service. Also, in an August 2011 statement, he reported that he was actually wounded on the right elbow during service and in a July 2009 statement, he indicated that he broke his right hand in a fall while on duty in 1969 in McAlaster, Oklahoma. At an August 2012 VA examination and claims file review, the examiner determined that there had been no specific current right arm/shoulder disorder diagnosed in the Veteran. The examiner noted that the Veteran had fairly recently (i.e. June 2011) had a lipoma removed from the soft tissue of the right shoulder but that didn't involve the joint and wouldn't explain his current complaints of pain/grinding in the shoulder. Also, while the August 2012 VA examination showed a right rotator cuff problem, the examiner determined that this was not at least as likely as not related to the right arm monoparesis. Additionally, VA medical records also indicate that the Veteran had had a lipoma of the right elbow, which seemed to have been causing some numbness in the right 4th and 5th fingers. However, this lipoma was also removed in June 2011 and after the removal, the Veteran reported that the numbness in the fingers had improved. Further, at a December 2011 VA hand examination, no diagnosis pertaining to the right hand was rendered and the examiner specifically found that there was no functional loss in the right hand. Thus, in sum, the evidence does not show any current chronic disability of the right hand, right arm or right elbow, as the symptoms associated with the elbow lipoma were transitory in nature and resolved after the lipoma was removed. Also, in regard to right shoulder disability, the Veteran is only shown to have some level of rotator cuff pathology (with no indication of any residual disability from the shoulder lipoma). However, given the specific opinion of the VA examiner, the lack of any medical opinion to the contrary, and the minimal probative weight that may be afforded to the lay opinion of the Veteran (notably, the Veteran hasn't alleged continuity of right shoulder pain since service and just appears to be generally alleging current shoulder disability that is otherwise related to service), the weight of the evidence is against a finding that this rotator cuff disability is related to service. Accordingly, service connection for right shoulder, arm, elbow and hand disability must be denied. 38 U.S.C.A. § 3.303; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Alemany, 9 Vet. App. 518 (1996). B. TDIU Regarding TDIU, the Veteran is service connected for Veteran posttraumatic stress disorder (PTSD), rated 70%: bronchitis, rated 30%: left thumb disability, rated 20%; low back strain, rated 20%; left lower extremity radiculopathy, rated 20%; residuals of left knee meniscectomy, rated 10%; psychophysiological gastrointestinal reaction with GERD and IBS, rated 10%; chondromalacia, right knee, rated 10%; pes planus, rated 10%; scar left knee, rated 0%; and scar left thumb, rated 0%. His current combined rating is 90 percent and he meets the schedular rating requirements for assignment of a TDIU. 38 C.F.R. § 4.16(a). The remaining question is whether he is unemployable due to his service-connected disabilities. The Veteran's claim for a TDIU indicates that the only post-service work he performed was as a mechanic. It also indicates that he has a high school education with one year of college and the only post-service training he received was as a mechanic. Given his severe level of psychiatric disability combined with his significant physical disabilities, it is reasonable to conclude that he would not be able to currently work to a level of substantial gainful employment as a mechanic. Similarly given his fairly limited education and lack of alternative training, considered in conjunction with his severe psychiatric disability and significant physical disabilities, and resolving any reasonable doubt in his favor, it is reasonable to conclude that his service connected disabilities would also preclude other substantial gainful employment. Accordingly, assignment of a TDIU rating is warranted. Id. The Board notes that in light of this grant, the Veteran will now be compensated at the total, 100 percent rate. Consequently, he may want to consult with his representative to determine whether he wishes to continue pursuing any additional claims he may have pending with the RO. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for left hip disability is denied. Entitlement to service connection for right hip disability is denied. Entitlement to service connection for pinched nerve in back is denied. Entitlement to service connection for right hand disability is denied Entitlement to service connection for right arm, shoulder, and elbow disabilities are denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs