Citation Nr: 1753763 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-07 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial increased rating for bilateral hearing loss. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a back disability. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1984 to March 1992 and from May 1991 to March 1992 with additional National Guard service. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2012, June 2012, and November 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In March 2017, in support of these claims, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. The issues of entitlement to service connection for tinnitus and testicular atrophy, originally associated with this appeal stream, were granted in a February 2014 rating decision. As such, they are not in appellate status and will not be addressed further here. The issues of entitlement to an increased rating for bilateral hearing loss and entitlement to service connection for a left shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's back disability was incurred during active service. CONCLUSION OF LAW The criteria for service connection for a back disability have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA applies to this claim. However, as the benefit sought is granted, any notice error or duty to assist omission is harmless. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for certain chronic diseases, if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 110, 1112; 38 C.F.R. §§ 3.307, 3.309. Entitlement to service connection on the basis of a continuity of symptoms after discharge under 38 C.F.R. § 3.303(b) is also available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). The Veteran's March 2017 hearing testimony, medical records showing evaluation of an in-service back injury, and an August 2012 written statement from the Veteran's colleague establish that the Veteran injured his back during active service. Medical records establish that he has a current back disability. The question before the Board is whether the in-service back injury is related to the current disability. After a careful review of the evidence, the Board finds that it is at least as likely as not that the Veteran's current back disability was incurred during active service. The Board finds the testimony and statements from the Veteran, his spouse, and his colleague describing the in-service back injury and the continuity of his back symptoms until present competent, credible, and highly probative of the fact that the Veteran's back disability occurred in service and continued through his diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because the probative evidence of record is positive as to incurrence of the Veteran's back disability during service, service connection is warranted. ORDER Entitlement to service connection for a back disability is granted. REMAND Service connection - Left Shoulder The Veteran is claiming service connection for a left shoulder disability that he believes was incurred during active service. The Board finds the October 2013 VA's examiner's negative nexus opinion speculative because it appeared to penalize the Veteran because his shoulder injury was evaluated by an Army medic instead of a physician. In addition, the examiner stated-without explanation-that "history from the subject may contain inaccuracies." The Board notes that VA examiners' objective medical opinions and documented clinical findings are critical to the fair and full adjudication of cases that our Veterans deserve. Because the Board finds this examination inadequate to decide the claim, a remand is necessary to afford the Veteran an additional VA shoulder examination with a different examiner. Increased Rating - Hearing loss The Veteran is seeking a compensable rating for his service-connected hearing loss. During his March 2017 Board hearing, he testified that his hearing has worsened since his most recent audiological examination. Accordingly, a remand is warranted to afford the Veteran an additional audiological examination to evaluate the current severity of his hearing loss. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA or adequately identified treatment records for association with the claims file. 2. Then schedule the Veteran for a VA shoulder examination with a different examiner from the October 2013 examiner to answer the following based on a review of the claims file and interview and examination of the Veteran. For each identified left shoulder diagnosis, the clinician should provide an opinion responding to the following: Is it at least as likely as not (a 50% or better probability) that the diagnosed disability was incurred in or is otherwise related to the Veteran's service? A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then, arrange for the Veteran to be examined by an audiologist to determine the current severity of his bilateral hearing loss disability. The entire record must be reviewed and audiometric testing must be conducted. The examiner MUST report the findings of audiometric testing (i.e., puretone thresholds), the average puretone threshold, speech recognition test results, any other reported symptoms, and any functional impairment the Veteran reports due to his hearing loss disability. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Finally, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case and allow him the opportunity to respond. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs