Citation Nr: 1800463	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  11-03 812	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Whether a reduction of a disability rating for service-connected status-post right lung middle lobe lobectomy from 60 percent to 30 percent, effective May 1, 2012, was proper.

2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for bilateral hearing loss.

4. Entitlement to service connection for a bilateral shoulder disability.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

G.C., Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1987 to August 1995. Service in Southwest Asia is indicated by the record.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated February 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In March 2015, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing has been associated with the claims file. The Board then remanded the Veteran's claims in August 2015 in order to provide the Veteran with an additional hearing before a Veterans Law Judge. In August 2017, the Veteran presented sworn testimony during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has also been associated with the Veteran's claims file.


FINDINGS OF FACT

1. Prior to the May 2012 reduction, the Veteran was provided notice of the 60 day period to submit evidence and of the right to request a predetermination hearing. 

2. The evidence of record at the time of the rating reduction did not demonstrate material improvement in the Veteran's status-post right lung middle lobe lobectomy.

3. The RO denied the Veteran's initial claim for service connection for hearing loss in a January 1996 rating decision, which became final.

4. Evidence received since the January 1996 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss.

5. Bilateral hearing loss is not etiologically related to the Veteran's period of service.

6. The Veteran does not have a shoulder disability that was caused by or is otherwise etiologically related to his service.


CONCLUSIONS OF LAW

1. The reduction of the 60 percent rating assigned for the service-connected status post right lung middle lobe lobectomy was not proper, and the 60 percent rating is restored, effective May 1, 2012. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.97, Diagnostic Codes 6819, 6844 (2016).

2. New and material evidence has been received since the RO's January 1996 decision which denied service connection for bilateral hearing loss; the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3. Bilateral hearing loss was not caused by the Veteran's service. 38 U.S.C. §§ 1110, 1116(f), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017).

4. The Veteran does not have a shoulder disability that is related to his service. 38 U.S.C. §§ 111, 5108 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1).

There is no indication in this record of a failure to notify. In January 2011 and October 2011, the RO mailed the Veteran VCAA letters detailing the evidentiary requirements of a service connection claim, the evidence that the Veteran should send to VA, and VA's responsibilities to assist the Veteran. The Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. §5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)).

The Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issues on appeal.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examinations in November 2014 and January 2015. Based on the examinations and the records, the VA medical examiners were able to provide adequate opinions. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied.

In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran.

Rating Reduction

The law provides that a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155 (2012). The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a RO reduces a veteran's disability rating without following applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Prior to reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 250 (2000).

In certain rating reduction cases, such as when the rating is in effect for more than five years, recipients of compensation are to be afforded greater protections. 38 C.F.R. § 3.344 (2017). Those regulations provide that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that those considerations are applicable for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities that have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. Similar protections are afforded to veterans who have been awarded a total rating based on employability. 38 C.F.R. § 3.343 (2017).
Under the criteria of § 3.344, the RO must find the record clearly reflects a finding of material improvement in the underlying disability and it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a), (b) (2017); Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 413.

Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105 (e).

Turning first to the procedural requirements for proposing and implementing rating reductions, the RO proposed reducing the Veteran's rating for status post right lung middle lobe lobectomy from 60 percent to 30 percent in a January 2011 rating decision. The January 2011 rating decision included detailed reasons for the proposed reduction and was accompanied by a January 4, 2011 notice of the Veteran's procedural rights. The Veteran was specifically advised of his right to participate in a personal hearing and submit additional evidence. An additional examination was scheduled for the Veteran, which was conducted in February 2011. After determining that the evidence presented in this examination failed to demonstrate that the Veteran's 60 percent evaluation should be continued, the RO issued a February 2012 rating decision implementing the proposed reduction, which became effective as of May 1, 2012. Thus, the reduction was implemented more than 60 days after the proposal to reduce benefits, the Veteran was afforded a VA examination, and he did not request a personal hearing regarding this particular proposed reduction. The Board notes that the Veteran was afforded an August 2017 Board hearing on this issue once it was appealed. 

Accordingly, the Board concludes that the RO followed proper procedure when proposing and implementing the rating reduction; the rating reduction is not void ab initio, and the Board may proceed to analyze the merits of the claim. See 38 C.F.R. § 3.105 (e).

Here, the Veteran's service-connected status post right lung middle lobe lobectomy was evaluated as 60 percent disabling under Diagnostic Code 6819-6844 pursuant to a January 2011 rating decision. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. 

Diagnostic Code 6819 governs malignant neoplasms of any specified part of the respiratory system. Under Diagnostic Code 6819, a 100 percent rating continues beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuance of such treatment, the appropriate disability rating is determined by mandatory VA examination. If there has been no local recurrence or metastasis, the rating is based on residuals. 38 C.F.R. § 4.97, Diagnostic Code 6819.

Diagnostic Code 6844 provides that post-surgical residuals of lobectomy will be rated under the general rating formula for restrictive lung diseases. This formula provides the following criteria:

A 100 percent disability rating for findings that show Forced Expiratory Volume in one second (FEV-1) less than 40 percent of predicted value, or; the ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy.

A 60 percent disability rating is assigned for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardio-respiratory limit).

A 30 percent disability rating is assigned for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. 

Respiratory disorders rated under Diagnostic Codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under Diagnostic Codes 6819 and 6820 will not be combined with each other or with Diagnostic Codes 6600 through 6817 or 6822 through 6847. Rather, a single rating will be assigned under the code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96 (a).

Effective October 6, 2006, VA amended 38 C.F.R. § 4.96 to add provisions that clarify the use of pulmonary function tests (PFTs) in evaluating respiratory conditions. A new paragraph (d) to 38 C.F.R. § 4.96, entitled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845" includes a provision requiring PFTs to evaluate respiratory conditions except in certain situations. When the PFTs are not consistent with clinical findings, evaluation should generally be based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96 (d)(3).

The Board first observes that the Veteran's rating of 60 percent effective January 2011 was not in effect for more than five years, and as such, the heightened requirement of showing a material improvement in the Veteran's disability prior to a rating reduction does not apply as prescribed by 38 C.F.R. § 3.343 (2017).

However, it must still be determined that an improvement in the Veteran's disability reflecting an improvement in his ability to function under the ordinary conditions of life and work has actually occurred. See Faust at 342, 250.

The Veteran's rating reduction was based upon the results of an May 2010 VA examination. Indeed, a pulmonary function test during the examination shows that the Veteran had an FEV-1 of 63 percent, and an FEV-1/FVC of 67 percent. Pursuant to the rating criteria, these numbers would in fact warrant an evaluation of 30 percent for the Veteran's status post right lung middle lobe lobectomy. However, the Veteran's DLCO was recorded as 55 percent at that examination. This was not reflected in the February 2012 rating decision. Pursuant to the diagnostic criteria outlined in 38 C.F.R. § 4.97, Diagnostic Code 6844, a DLCO of 55 percent warrants a 60 percent disability rating. In addition, the Board notes that review of a thoracic CT scan showed no significant interval change in appearance of the chest when compared with May 2008, when the Veteran's status post right lung middle lobe lobectomy was rated as 100 percent disabling. 

Additionally, the Veteran was afforded another VA examination in February 2011. A review of the February 2011 VA examination report and the other competent medical and lay evidence of record did not show an actual improvement in the Veteran's status post right lung middle lobe lobectomy or his ability to function under the ordinary conditions of life and work. Indeed, a pulmonary examination of the Veteran showed right and left abnormal breath sounds. The examiner noted that the Veteran's activities are limited due to a lack of stamina resulting from his lung condition. Pertinently, the examiner specifically indicated that the May 2010 DLCO of 55 percent predicted was confirmed. 

The Board also takes note of the Veteran's testimony during his August 2017 hearing. The Veteran conveyed that humidity prevents him from doing his daily activities, and that he essentially requires good air circulation as well as the use of an inhaler four times a day in order to help him breathe. The Veteran testified that his difficulty with breathing is hard on him.  

Upon review of the record, the Board finds that there is insufficient evidence to show that there was a change in the Veteran's status post right lung middle lobe lobectomy or an actual improvement of function under the ordinary conditions of life and work. In making this determination, the Board finds that the most probative evidence of record is the same May 2010 VA examination the erroneous reduction was based upon, as not only did it not reflect an improvement of the Veteran's condition, but also the DLCO of 55 percent is squarely within the 60 percent rating criteria under 38 C.F.R. § 4.97, Diagnostic Code 6844. Therefore, the Board restores the 60 percent rating for status-post right lung middle lobe lobectomy, effective May 1, 2012.

New and Material Evidence 

Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

Regardless of the AOJ's actions, given the previous unappealed denial of the bilateral hearing loss claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2012) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996).

The evidence considered by the January 1996 rating decision that denied entitlement to service connection for bilateral hearing loss included the Veteran's service treatment records, as well as a November 1995 VA audiological evaluation.  Service connection was denied based on insufficient evidence of a current disability.

Evidence received since January 1996 includes VA treatment notes, multiple statements from the Veteran, an October 2011 VA examination, a November 2014 VA examination, and the transcript from an August 2017 hearing. The VA medical records show that the Veteran has a current hearing loss disability, which he has sought treatment for after separation from the military, and that he now wears hearing aids. The October 2011 VA examination confirmed that the Veteran has a current diagnosis of bilateral hearing loss. The November 2014 VA examination confirmed that the Veteran has a current bilateral hearing loss diagnosis. The August 2017 hearing transcript contains the Veteran's lay statements regarding the nature of his hearing loss disability and a description of the onset and progression of the same. 

The Board finds that the evidence received since January 1996 with respect to the Veteran's bilateral hearing loss is new and material. His claim was originally denied on the basis that his hearing was deemed normal at his first VA hearing examination in November 1995, and no hearing loss for VA compensation purposes was found. The additional evidence shows that there is now a diagnosis of bilateral hearing loss. The Board therefore finds that the submitted evidence is new and material, and that it raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The claim is therefore reopened. 

Service Connection 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d) (2017).

Service connection may be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309 (a)." VBA Manual M21-1, III.iv.4.B.12.a.

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 are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)) (to include arthritis and organic diseases of the nervous system such as hearing loss). A grant of service connection under 38 C.F.R. § 3.303 (b) does not require proof of the nexus element; it is presumed. Id. 

The Veteran asserts that service connection is warranted for bilateral hearing loss, and a bilateral shoulder disability. With regard to the claim for bilateral hearing loss, he argues that he has this disability as the result of exposure to loud noise during service, to include as due to artillery fire and aircraft noise. With regard to the bilateral shoulder claim, the Veteran essentially claims that his duties as a parachutist in service along with the demands of long standing and marching with a heavy rucksack caused his shoulder issues.



Bilateral Hearing Loss

As previously noted, the Veteran states that his bilateral hearing loss is the result of exposure to loud noise during service, to include as due to artillery fire and aircraft noise.

The Board first observes that there is a question as to whether hearing loss pre-existed the Veteran's service. A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). 

In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C.A. § 1111. The statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected." (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304 (b). History of pre-existing conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1). 

Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; see also 38 C.F.R. § 3.304 (b) ("[o]nly such conditions as are recorded in examination reports are considered as noted.").

Significantly, if the degree of hearing loss noted on an entrance medical examination did not meet VA's definition of a "disability" for hearing loss under 38 C.F.R. § 3.385, the Veteran is entitled to the presumption of soundness under 38 C.F.R. § 1111. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). According to McKinney, abnormal hearing which does not meet the thresholds of a hearing loss "disability" for VA compensation purposes cannot be deemed a "defect" which is noted on the entrance examination.

In this case, the Veteran's July 1986 enlistment examination notes that there was no hearing loss pursuant to an audiogram, and that the Veteran was qualified for military service. Review of the audiogram shows that the Veteran's hearing was diminished in the right ear, as confirmed by the November 2014 VA examiner. See November 2014 VA examination. However, while the Veteran's hearing was diminished at entrance into the military, it did not rise to the level considered to be a "disability" for VA purposes. The auditory threshold in none of the thresholds of 500, 1000, 2000, 3000 or 4000 Hertz was 40 decibels or greater, nor were auditory thresholds greater than 26 decibels in any of the aforementioned frequencies, nor were speech recognition scores less than 94 percent. See 38 C.F.R. § 3.385 (2017). As such, the Veteran's right ear in this case is presumed sound. See McKinney, 28 Vet. App. at 21. 

STRs also contain an April 1990 audiology evaluation, which notes that the Veteran, who was 20 years old at the time, and had a history of fluid removal from his right ear, was shown to have hearing loss at the 500 Hz and 1000 Hz frequencies at the right ear. The doctor noted that the Veteran's enlistment examination audiogram showed conductive hearing loss to the right ear.  

In May 1991, the Veteran was examined for right ear pain following the use of a Q-tip. He was diagnosed with possible tympanic membrane perforation.

In October 1993, the Veteran's right ear conductive hearing loss was noted, as was noise exposure to aircraft for three years. However, the Veteran was assessed to have normal hearing, mild conductive hearing loss in the right ear, and excellent speech discrimination all around. A referral to an ENT specialist was given, and follow up after treatment was recommended. 

In June 1995, the Veteran had an audiology consultation, and reported no increase in his hearing issue. His left ear was noted to be within normal limits, and right ear had stable air conduction and slight progression of loss in bone conduction. Normal tympanograms were also noted, and ipsi reflexes were absent on the right.

Again in June 1995, the Veteran had an ENT consultation. The Veteran was reported to have conductive hearing loss on the right which was progressive since 1990, evaluated as probable otosclerosis of the right ear, lost to follow-up. 

The Veteran's June 1995 report of medical history and separation examination are also of record, and reflect that the Veteran complained of ringing in his ears. The Veteran further reported having hearing loss. He explained that at age 10, he underwent drainage of fluid in his right ear with tubes, and was advised by Dr. P. that it was possible he would require an operation. The examining physician noted pertinently that the Veteran had hearing loss which was progressive since 1990, that he was evaluated by an ENT specialist in November 1993, and was being referred to an audiologist and ENT specialist. The Veteran's separation examination also contains an audiological evaluation. 

The first post-service treatment record is a November 1995 VA audiological evaluation. Speech discrimination was noted as 100 percent bilaterally. In fact, it was assessed that the Veteran's speech was within normal limits.

The next post-service record is in June 2008, when a VA facility found the Veteran to have mild hearing loss. The Veteran reported having hearing loss to the right ear since 1990, and conveyed that he was exposed to noise from weapons fire and artillery. The Veteran denied any history of medical problems with the ears or any ear injury. After removing excess cerumen from the Veteran's right ear, the doctor assessed that the Veteran's right hearing loss was mild, except at the 2000 Hz frequency where hearing was normal. The doctor also indicated that left ear hearing was normal across the hearing range with the exception of a moderate loss at 8000 Hz. Speech discrimination was 92 percent in the right ear and 100 percent in the left ear. The Veteran was referred to an ENT specialist for the conductive hearing loss of the right ear.

In October 2011, the Veteran was afforded another VA examination, which reflected that his entire claims file was reviewed. The Veteran reported acoustic trauma in service. On examination, the Veteran was diagnosed with mixed hearing loss to the right ear, and sensorineural hearing loss in the left ear at higher frequencies, which does not meet VA criteria to be considered a disability. Speech discrimination was 94 percent on the right, and 96 percent on the left. 

The examiner stated that an opinion regarding the etiology of the Veteran's hearing loss could not be provided without resorting to mere speculation. The examiner reported that the Veteran has had right ear conductive hearing loss since military service in 1990. However, due to the conductive nature of the Veteran's hearing loss and the fact that he was previously evaluated by an ENT, it was recommended that the Veteran undergo a separate evaluation.

In September 2013, the Veteran sought treatment from an ENT specialist for mixed right ear hearing loss. The Veteran was issued a right ear hearing aid. 

In November 2014, the Veteran was afforded another VA examination to assess the nature and etiology of his claimed hearing loss disability. The examination is shown to have been based on a review of the entire claims file. The Veteran's diagnosis of mixed hearing loss in the right ear and sensorineural hearing loss in the left ear at higher frequencies, not considered a disability for VA purposes, was confirmed. Speech discrimination was 96 percent bilaterally. The examiner opined that it is less likely than not that the Veteran's right ear and left ear hearing loss are etiologically related to service. 

The examiner explained that the Veteran's enlistment examination reflected that the Veteran had ear problems, and specifically, an ear operation at age 10 for a tube of fluid and drainage on the right ear. The examiner also noted that the Veteran's induction hearing test showed that the Veteran entered the military with a low frequency hearing loss at 500 Hz, 1000 Hz and 6000 Hz in the right ear. This was confirmed in an April 1990 treatment record, as well as in 1993 and 1995 examinations.   

Pertinently, the examiner indicated that there are no significant threshold shifts noted when comparing the Veteran's induction and separation examinations, and thus, there is no evidence of military related noise exposure. 

Similarly, the examiner reviewed the audiograms of record for the left ear, and concluded that no significant threshold shifts are noted when comparing induction and separation exams. Furthermore, the examiner noted that there are no complaints, diagnosis or treatment of a claimed left ear condition of record. 

The Board is aware that more recently, the Veteran complained of hearing loss in the left ear at a February 2017 VA medical center visit. The Veteran conveyed that the onset of his left ear hearing loss was 3 to 4 months prior.

In April 2017, the Veteran again complained of decreased hearing. He reported that two months prior, he woke up and could not hear out of his left ear, and if he took off his right ear hearing aid, there was no sound at all. The Veteran was assessed to have bilateral hearing loss, and specifically, mixed hearing loss on the right, and normal hearing on the left through the 2000 Hz level, sloping to a moderately severe sensorineural hearing loss. A left ear hearing aid was ordered, but for the purpose of tinnitus management. 

The Veteran was afforded a hearing in August 2017 before the undersigned, and a transcript is of record. The Veteran reported that he was first diagnosed with hearing loss while in Germany. The Veteran essentially stated that he was constantly exposed to loud noises while in service, including artillery fire and loud aircraft, and that it is his opinion that these noises contributed to his hearing loss. He further conveyed that  people would sometimes remark that he was speaking loudly, but it was not until his separation examination that he found out he had hearing loss. The Veteran also reported he wears hearing aids bilaterally.

Upon review of the evidence of record, the Board finds that the preponderance of the evidence is insufficient to show that the Veteran's hearing loss is etiologically related to service.

In this case, in his 2014 examination, the Veteran indicated that he has had hearing loss since his service. However, as previously noted, review of his audiogram showed he entered service with abnormal right ear hearing. In fact, the Veteran conveyed that before his entry into service, he had a procedure done on his right ear, including fluid removal via a tube. Nevertheless, since the presumption of soundness attaches as previously discussed, the Board finds persuasive that no significant threshold shifts or deterioration in hearing in the right ear were noted between his entrance and separation examinations. Furthermore, the Veteran's left ear was not diagnosed with any disability under the VA criteria until 2017, long after separation, though the Board is aware that the Veteran was diagnosed with left ear sensorineural hearing loss at higher frequencies in 1995. 

The Board also takes note of the Veteran's testimony and lay complaints. However, the Board finds that the most probative evidence of record is the November 2014 VA examination, as it was based on a review of the medical records, audiographic examination, and is supported by a strong rationale. Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). 

The most probative evidence of record reflects that the Veteran's right ear hearing loss was neither caused nor aggravated by service. The evidence further reflects that the Veteran was not diagnosed with a left ear condition qualifying as a disability until well after his separation from service. The most persuasive evidence of record, the November 2014 VA examination, emphasizes that there were no significant threshold shifts when comparing the Veteran's induction and separation audiograms. In other words, the Veteran's right ear hearing was no worse at the end of his service, after the exposure to loud artillery and military-related noise, than at entry into service. The examiner thus concluded that the Veteran's bilateral hearing loss was not likely related to service.

The Board also notes that there is no competent opinion of record in favor of the claim. Rather, the record is absent any evidence of worsening hearing until September 2013, over 20 years after separation from service, when the Veteran was first given a right ear hearing aid.

Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that service connection for bilateral hearing loss must be denied.

Bilateral Shoulder Disability

The Veteran claims that his shoulder problems had their onset in service. The Veteran details holding heavy equipment on his shoulders including a rucksack weighing over 100 pounds while in service. The Board also notes the Veteran's parachute badge, and the Veteran's testimony of strenuous jumping with an Alice pack. See hearing transcript; see also DD-214.

The Veteran's service treatment records do not show complaints, treatment, or a diagnoses involving his shoulders. The Veteran's separation examination report, dated in June 1995, shows that his upper extremities, were clinically evaluated as normal. In an associated "report of medical history," the Veteran indicated that he did not have a history of "painful or 'trick' shoulder." 

The Veteran filed a claim of entitlement to service connection for a bilateral shoulder disability in March 2011.  

As for the post-service medical evidence, VA progress notes show that the Veteran was first seen for right shoulder pain in May 2001. No reports of shoulder issues are of record afterward, until March 2007, when the Veteran was first seen at VA for left shoulder pain.  During the consultation, it was noted that his left shoulder pain had its onset six months prior to the visit. The Veteran reported that he used to be an air policeman in service, denied any injury to the left shoulder, but indicates that he was experiencing pain to his left shoulder for the past six months. The doctor reviewed x-rays, which showed advanced degenerative joint disease changes and mild arthritis with osteophyte bilaterally. Physical therapy was recommended. In May 2011, the Veteran complained of bilateral shoulder pain at a VA facility. Physical examination showed minimal restriction of shoulder movements, no deformities, and that cranial nerves are intact. In an October 2013 VA progress note, the Veteran again reported right shoulder pain. The Veteran denied trauma to his shoulder, and was noted to have been treated with injections. 

The Veteran was afforded a VA examination in November 2014, which was shown to have been based upon a review of the Veteran's medical records and an in-person examination. The Veteran reported that he was a paratrooper in the military with over 30 parachute jumps, and that he believed his bilateral shoulder condition was caused by his service activities. 

The Veteran's diagnosis of bilateral shoulder degenerative joint disease was confirmed. However, the examiner opined that the veteran's bilateral shoulder condition is less likely than not related to his service. The rationale was that the Veteran's service treatment records are silent for any complaints or treatment of a bilateral shoulder condition, and that the separation physical had normal findings. 

As the examiner did not consider the Veteran's parachute jumps, an addendum opinion was requested. In January 2015, a VA examiner reviewed the Veteran's entire claims file. The examiner opined that the Veteran's bilateral degenerative joint disease of the shoulders is less likely than not related to the Veteran's service, because the Veteran's treatment records do not document chronic, ongoing treatment for a shoulder condition. Further, the examiner noted that the Veteran's separation examination was normal.

The Board takes note of the Veteran's August 2017 hearing testimony, and specifically, his statement that while in the service, it was practice to encourage ignoring pain. The Veteran reported that his claimed shoulder disability started affecting him when he got out of service. Specifically, he reported trying to raise his shoulder one day, and could not raise it beyond a certain point. He also reported going to physical therapy, doing home exercises, and receiving cortisone shots. The Veteran also stated that his shoulders pop and lock. 

Nevertheless, the Board finds that the claims must be denied. With regard to the possibility of service connection on a direct of presumptive basis, the Veteran's service treatment reports do not show any relevant treatment, or diagnoses. The Veteran has asserted that his relevant symptoms were mainly after separation from service, and there is no evidence of continuity of treatment since service. The earliest relevant medical evidence is dated in 2001, and the first diagnosis is in 2007, over 12 years since the Veteran's separation from service. 

There is no competent opinion in support of either of the claims on a direct basis, and no evidence to show that arthritis of the shoulder was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Accordingly, service connection on a direct or presumptive basis is not warranted. The Veteran's own statements support this finding. 

The only competent opinions are found in the November 2014 VA examination and January 2015 addendum, and these opinions weigh against the claims. These opinions are considered highly probative, as they are shown to have been based on a review of the Veteran's claims file, and they are accompanied by sufficient explanations. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 0(2008). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection. See 38 C.F.R. § 3.310.

With regard to the appellant's own contentions, while the Board understands the Veteran's concerns, and although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Degenerative joint disease is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding etiology, as the evidence shows that specific findings are needed to properly assess and diagnose these types of disorders. Id.; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The issues on appeal are based on the contentions that a bilateral shoulder disability, is related to service. The Veteran's service treatment reports and the post-service medical records have been discussed. The claimed condition is not shown during service, or for many years after separation from service. Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). 

As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

The reduction in the rating for status post right lung middle lobe lobectomy from 60 percent to 30 percent disabling was not proper, and the 60 percent rating is restored, effective May 1, 2012.

The claim of entitlement to service connection for bilateral hearing loss is reopened.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for a bilateral shoulder disability is denied.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs