Citation Nr: 18145658 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-35 315A DATE: October 29, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a rating higher than 10 percent for osteoarthritis of the right shoulder acromioclavicular (AC) joint with bursitis and rotator cuff tendonitis, from August 25, 2014 to February 27, 2017, is denied. Entitlement to a rating of 20 percent, but not higher, for osteoarthritis of the right shoulder acromioclavicular (AC) joint with bursitis and rotator cuff tendonitis, from February 27, 2017, is granted. REMANDED Entitlement to a compensable rating for a lumbar spine strain with degenerative disc disease (DDD) is remanded. FINDINGS OF FACT 1. The Veteran does not currently have a hearing loss disability for VA purposes. 2. From August 25, 2014 to February 27, 2017 the Veteran experienced painful motion in his right shoulder, but his flexion was no worse than 120 degrees and abduction was no worse than 110 degrees. 3. Since February 27, 2017 the Veteran’s abduction has been no greater than 80 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 2. The criteria for entitlement to a rating higher than 10 percent for osteoarthritis of the right shoulder acromioclavicular (AC) joint with bursitis and rotator cuff tendonitis, from August 25, 2014 to February 27, 2017, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201-5003. 3. The criteria for entitlement to a rating of 20 percent, but not higher, for osteoarthritis of the right shoulder acromioclavicular (AC) joint with bursitis and rotator cuff tendonitis, from February 27, 2017, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201-5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to July 2011 in the United States Marine Corps; he is a Veteran of the Persian Gulf War, was awarded the Combat Action Ribbon, and retired at the rank of staff sergeant. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 13, 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In August 27, 2013, the RO granted an initial rating of 10 percent for combined noncompensable degenerative arthritis without incapacitating episodes in the lumbar spine and AC joint of the right shoulder. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In February 2015, the RO granted separate disability ratings for the lumbar spine strain with DDD at 0 percent disabling, and for right shoulder osteoarthritis at 10 percent disabling—both effective August 25, 2014. On August 27, 2013, the RO denied service connection for hearing loss because there was no evidence of hearing loss in service and because the Veteran did not appear for his scheduled examination. The Veteran was notified of the decision on September 9, 2013, from that date he had one year to file a notice of disagreement (NOD). 38 C.F.R. § 20.201. Within one year, August 25, 2014, the Veteran filed a fully developed claim that included a claim for hearing loss in which he stated, “reschedule exam- didn’t receive notice in time.” Because the Veteran specifically disagreed with an aspect of the August 2013 rating decision the Board will not treat his bilateral hearing loss claim as one to reopen, rather it will be treated as an appeal that began with his November 29, 2011 application for service connection for hearing loss. However, since the claim for his right shoulder increase was received on a fully developed claim form on August 25, 2014, and because it did not specifically disagree with the prior rating decision, it will be treated as a new claim for an increased rating. His appeal for his right shoulder increase therefore began on August 25, 2014. Duty to Notify and Assist The Veteran has not identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, 5 Vet App. at 159. Bilateral Hearing Loss Service treatment records (STRs) show that upon entry into active service, on July 16, 1991, the Veteran’s hearing was within normal limits. On February 28, 2006 the Veteran was seen to readjust his Standard Threshold Shift (STS) due to his military occupational specialty (MOS) as a cannoneer. During this exam, his referenced audiogram was reestablished, but he was also found to have hearing within normal limits. In a post-deployment health re-assessment from August 20, 2008 the Veteran reported that he was having trouble hearing. A hearing examination from January 21, 2011 (6 months prior to separation) also shows hearing within normal limits. In his separation exam on March 20, 2011 the Veteran denied hearing loss. His separation audiological evaluation showed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 10 15 LEFT 0 10 -5 5 10 The service personnel records show that the Veteran served as an artilleryman for 19 years, 5 months with at least three combat deployments to Southwest Asia. The Board finds that the Veteran was exposed to high levels of noise throughout his active duty service. An audiological examination took place on February 10, 2015. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:   HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 10 LEFT 10 15 10 15 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. The examiner noted that hearing acuity was within normal limits. However, the examiner did say that there was a permanent positive threshold shift between 500 and 6000Hz in both ears during active service. He also stated that hearing loss was at least as likely as not related to service. The examiner then opined, Veteran showed normal bilateral hearing ability on military entrance hearing test. He also showed bilateral normal hearing ability on military separation hearing test but with significant bilateral threshold increases within the normal range since entrance test. Veteran reports prolonged exposure to artillery noise while in the military. The concluding remarks stated, “[a]lthough Veteran currently shows normal bilateral hearing ability, he does report some need for repetition in conversations.” In the Veteran’s May 10, 2015 NOD, he noted: I had to have a new baseline for my hearing in 2007 because there was a big difference from the initial hearing exam in 1991 . . . . This is due to the fact that my Military Occupational Specialty was Field Artillery Cannoneer Crewman (0811). He also noted “of course” he could hear during the exam because the words were played right into his ear. He stated that his trouble comes when having conversations, watching TV, or hearing certain tones of voice. In a substantive appeal on July 17, 2016, the Veteran continued to report that he struggled with daily conversations, and also asserted that he did not believe the audiological examination was a true reflection of his daily struggles with hearing loss. He reported that he struggles with background noise, and when more than one person is talking to him simultaneously. Analysis Service connection requires the existence of a present disability. 38 C.F.R. § 3.303; Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A current disability of hearing loss is when the auditory threshold in any frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Presently, the Veteran does not meet the criteria for a hearing loss disability for VA purposes. The Board concedes that the February 2015 examination opinion has inconsistencies. Namely, the discussion about the hearing threshold shift and the examiner stating “yes” hearing loss is as least as likely as not related to service, but then also finding that the Veteran has normal hearing and no disability. Despite the contradictions from the exam, the objective audiological examination does not demonstrate that the Veteran has hearing loss that meets the criteria for a disability. The regulations are clear, hearing loss is considered only if any frequency loss is 40 decibels or more, or if three specific frequencies are 26 decibels or more, or when speech recognition is 94 percent or less. Id. The Veteran’s audiological examination satisfies none of those requirements. While his decibel loss of 25 in the left ear at 4000Hz is outside the normal limits according to Hensley v. Brown, 5 Vet. App. 155, 157 (1993) it still does not rise to a level for a disability. Notwithstanding the examination narrative inconsistencies, the audiological testing does not demonstrate hearing loss for VA purposes, and furthermore, this is supported by the examiner marking several times that the Veteran has hearing within normal limits. The Board has considered the Veteran’s statements that he has difficulty hearing conversations, the TV, and has issues with background noise; he is competent to report all of this. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Unfortunately, at this time, the Veteran does not have a hearing loss disability for VA purposes based on the contemporaneous medical evidence. His claim for service connection for bilateral hearing loss is therefore denied. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information, lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Right Shoulder Osteoarthritis: between August 25, 2014 and February 27, 2017 The Veteran reported on several occasions that he is right handed. The Veteran received a C&P examination on February 10, 2015 for his right shoulder disability. The Veteran described his pain as “knifelike” and he believed symptoms were getting worse. He was receiving physical therapy and NSAIDS with minimal improvement. Additionally, he had not been using his right arm as much due to pain. He told the examiner he has about 2 flare-ups per month in which he cannot lift his arm for 24 hours. The Veteran described his functional loss as: I can’t play sports, lift weights, throw a ball, wash windows. I can’t raise my arm above the level of my shoulder. I have a hard time putting on a T shirt. It’s getting really weak, too. I hear a lot of grinding and popping in the shoulder. Range of motion (ROM) testing revealed that flexion was limited to 120 degrees, abduction was limited to 110 degrees, and internal rotation limited to 60 degrees. External rotation was a full 90 degrees. He does have functional loss for all overhead motions and activities; he also experiences pain on motion. There is objective evidence of localized tenderness. He could perform repetitive use testing with no additional functional loss or additional limitation of ROM. Although he was observed after repeated use, the examiner said that the exam was neither consistent or inconsistent with the Veteran’s statements about functional loss, and he was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability after repeated use. Speculation was also needed to say whether pain, weakness, fatigability, or incoordination occurred during flare-ups. The Veteran did experience some reduction in muscle strength on abduction. There was no muscle atrophy or ankylosis. The Veteran could not perform Hawkins’ Impingement or Empty-can Testing. His External Rotation and Lift-off Subscapularis Testing were positive for weakness. No instability was found, the examiner did say the Veteran has degenerative joint disease (DJD) of the AC joint with tenderness, and cross-body adduction test was positive for pain. The Veteran did not have an impairment of the humerus. Imaging studies had in fact revealed the existence of DJD in the AC joint. Functional loss was found to be lifting and carrying with the right arm, and loss of function for overhead motions. In other statements, the Veteran report working as a truck driver although the shoulder disability impaired his driving. On October 21, 2016 the Veteran’s shoulder was evaluated. He reported that his pain is constant and it is an 8 or 9 out of 10. He struggled to do anything over his head, and his shoulder fatigues quickly. A magnetic resonance image obtained I April 2016 showed no rotator cuff tears and mild degenerative findings in the AC joint. A therapist noted that the symptoms were consistent with secondary impingement syndrome. Ranges of motion were not worse than 160 degrees flexion and abduction. The Veteran is rated under Diagnostic Codes 5201-5003. 38 C.F.R. § 4.71a. He is receiving a 10 percent evaluation for X-ray evidence of degenerative arthritis and painful motion. 38 C.F.R. § 4.59 (allows consideration of function loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint). A 20 percent evaluation would be warranted for major or minor limitation of motion at shoulder level, or for minor limitation of motion midway between the side and shoulder; a 30 percent evaluation for minor limitation at 25 degrees from the side, or for major limitation midway between the side and shoulder level; and a 40 percent evaluation if there is major limitation at 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Additionally, a 20 percent evaluation is available under Diagnostic Code 5003 with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. §4.71a. In determining whether a Veteran has limitation of motion to shoulder level, it is necessary to consider reports of both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Normal shoulder motion is defined as zero to 180 degrees of forward elevation (flexion), 0 to 180 degrees from the side of the body out to the side (abduction), and zero to 90 degrees of internal and external rotation. See 38 C.F.R. § 4.71, Plate I. Even with the noted limited motion and pain on motion the Veteran’s disability did not warrant a rating above 10 percent between August 25, 2014 and February 27, 2017. The Veteran’s flexion during this time was 120 degrees and his abduction was 110 degrees. Both of these measurements are above shoulder level, or 90 degrees. He is therefore not entitled to a rating higher than 10 percent for his right shoulder osteoarthritis as he did not have an ROM compensable for ratings purposes. Consideration of other diagnostic codes will be discussed below. But until his most recent examination showed additional limitation in ROM, the Veteran was not entitled to a rating higher than 10 percent. 2. Right Shoulder Osteoarthritis: from February 27, 2017 A more recent examination was held on February 27, 2017. Here, the Veteran described his shoulder pain as 6 out of 10. He expressed that he cannot lift weights or wash his car, and that he has trouble washing dishes, driving, running, and going to the firing range. He did not report flare-ups. His flexion was 135 degrees, abduction 80 degrees, internal rotation was 65 degrees, and his external rotation was full. He reported pain on motion, did not have pain on weight bearing, he did have localized tenderness and crepitus. Repetitive use testing did not reveal additional functional loss or loss of ROM. He was not examined after repeated use. The Veteran had reduction in muscle strength on both forward flexion and abduction. There was no atrophy or ankylosis. There was no instability, but there was tenderness on palpation of the AC joint. Cross-body adduction testing was positive for pain. No impairments of the humerus was found. There was pain with non-weight bearing. As noted above, a 20 percent evaluation is warranted for major or minor limitation of motion at shoulder level, or for minor limitation of motion midway between the side and shoulder; a 30 percent evaluation for minor limitation at 25 degrees from the side, or for major limitation midway between the side and shoulder level; and a 40 percent evaluation if there is major limitation at 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Again, the flexion and abduction are measured when considering a higher rating for Diagnostic Code 5201. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). The Veteran’s flexion actually improved from the previous examination and reached 135 degrees. However, the Veteran’s abduction was limited to 80 degrees, which is lower than shoulder level, or 90 degrees. Based on his abduction being limited to 80 degrees he is entitled to a 20 percent rating based on his limited ROM of his abduction. 38 C.F.R. § 4.71a, Diagnostic Code 5201. He is not entitled to a rating higher than 20 degrees as his limitation of motion is not midway between his side and shoulder level or limited to only 25 degrees from his side. Id. The Board considered whether the Veteran is entitled to a higher rating on the basis of functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. at 38-43; Burton, 25 Vet. App. at 1. The Board acknowledges that the Veteran has right shoulder pain, weakness, loss of motion, and grinding and popping of the shoulder. Nevertheless, higher compensation is not warranted under 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, because the evidence of record does not reflect additional functional loss due to pain, weakness, fatigue, or incoordination, nor does it show limited motion or function to such a degree as to warrant a rating in excess of 10 percent or 20 percent for this current appeal period. Additionally, the Board has considered the applicability of other diagnostic codes. However, the evidence does not show ankylosis, impairment of the humerus, clavicle, or scapula. Therefore, Diagnostic Codes 5200, 5202, and 5203 are not applicable. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Lumbar Spine The February 13, 2015 rating decision awarded separate disability ratings for the right shoulder and lumbar spine after the August 27, 2013 rating decision rated them together under Diagnostic Code 5003. 38 C.F.R. §4.71a. The RO granted a non-compensable rating for the lumbar spine strain with DDD based on X-ray evidence of degenerative arthritis, and did not award a higher rating because there was no limitation of motion. However, the RO did not base this information on any contemporaneous, objective medical evidence because there was no examination for the lumbar spine. Since the February 2015 rating decision, the Veteran provided an NOD on May 10, 2015 and a statement of the case (SOC) on July 17, 2016 both of which state that his back is in pain and getting worse. An examination is therefore necessary to evaluate the current progression of the lumbar spine disability. The matter is REMANDED for the following action: 1. Afford the Veteran the opportunity to identify or submit any additional relevant evidence and argument in support of his claims on appeal. Request that he identify any other relevant treatment that he has received or is receiving, and request that he forward any additional records to VA to associate with the claims file or provide VA with authorization to obtain such records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine strain with degenerative disc disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine strain with degenerative disc disease alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Readjudicate the issue on appeal. If the benefit being sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel