Citation Nr: 18149752 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 15-06 691 DATE: November 13, 2018 ORDER Service connection for hearing loss is granted. Service connection for peripheral neuropathy of the left lower extremity is granted. Service connection for peripheral neuropathy of the right lower extremity is granted. A 20 percent rating for left shoulder bursitis is granted, subject to the laws and regulations governing the payment of monetary awards. REMANDED Entitlement to a rating in excess of 20 percent for the left shoulder bursitis is remanded. Entitlement to a compensable rating for residuals of fracture of the fifth digit of the right hand is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s hearing loss was incurred in service. 2. The Veteran’s left lower extremity peripheral neuropathy proximately due to or the result of his service-connected diabetes mellitus. 3. The Veteran’s right lower extremity peripheral neuropathy proximately due to or the result of his service-connected diabetes mellitus. 4. Considering the Veteran’s pain and corresponding functional impairment, his left shoulder bursitis has manifested by at least limitation of motion equating to shoulder level. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 4. The criteria for a 20 percent rating for left shoulder bursitis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from August 1961 to August 1965, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011, November 2011, and July 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The evidence raises the issue of whether the Veteran is unemployable due, in part, to the service-connected disabilities on appeal. The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the issues on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). See, e.g., VA examination (October 2011) (showing that the examiner opined that the Veteran is not suited for physical labor tasks that require lifting, pushing or pulling). In June 2018, the Board obtained a medical expert opinion from the Veterans Health Administration. 1. Hearing Loss The Veteran seeks service connection for bilateral hearing loss, which he contends began in service and has been recurrent since that time. All three elements of service connection are established by the competent, credible lay and medical evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As to the first two elements, the Veteran has a diagnosis of bilateral hearing loss, reports ongoing hearing loss since exposed to jet engine noise in service while performing his duties as a fuel specialist. See, e.g., VA treatment record (May 5, 2009). Personnel records confirm that the Veteran served in the Air Force as a fuel specialist. Further, the competent, credible evidence shows that the Veteran’s hearing loss was incurred in service. Service treatment records show a shift in hearing acuity between enlistment and separation. On separation from service, a July 1969 audiogram shows the presence of some hearing loss; however, the such did not rise to the level of a hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385 (2017) (stating that impaired hearing is considered a disability for VA purposes when, in pertinent part, the auditory threshold in any of the 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); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (stating that threshold levels in excess of 20 decibels are demonstrative of some hearing loss). Post-service VA treatment records show that the Veteran was initially diagnosed with hearing loss on May 5, 2009. In May 2011, a VA examiner opined that it is less likely than not that the Veteran’s current hearing loss disability is related to service. The rationale was that the Veteran’s hearing was normal upon separation from service, he did not experience a significant shift in hearing acuity during service, and a 2005 medical study shows no support for delayed onset of noise-induced hearing loss. The Board finds that the May 2011 VA medical opinion is predicated on the inaccurate factual premise that the Veteran’s hearing was normal on separation from service, because, as noted above, separation audiogram showed some hearing loss. Additionally, the absence of documented hearing loss while in service is not fatal to a claim for service connection. When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Finally, the examiner failed to address whether the current hearing loss is a progression of that noted during service. In June 2018, the Board obtained a medical expert opinion from the Veterans Health Administration. The expert opined that it is at least as likely as not that the Veteran’s hearing loss was caused by military noise exposure as his military occupational specialty (fuel specialist) presented a high probability of hazardous noise exposure. The expert further noted that the Veteran experienced a significant hearing threshold shift at 500 Hz in the left ear between enlistment and separation. The Board finds that the June 2018 expert opinion is highly probative as it is supported by clear rationale and based upon a detailed review of the Veteran’s relevant medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, all three elements necessary to establish service connection have been met. 2. Peripheral Neuropathy of the Lower Extremities The Veteran seeks service connection for peripheral neuropathy, which he contends is secondary to his service-connected diabetes mellitus. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310 (2017). Here, the Veteran has a current diagnosis of peripheral neuropathy and is in receipt of service connection for diabetes mellitus. See, e.g., VA examination (May 2012) (confirming a current diagnosis of peripheral neuropathy); Rating Decision (May 2012) (granting service connection for diabetes mellitus). Accordingly, this case turns on whether the Veteran’s current peripheral neuropathy is proximately due to or aggravated by his service-connected diabetes mellitus. Historically, the evidence shows elevated glucose levels in December 2009 and that the Veteran was diagnosed with diabetes mellitus in November 2010. See, e.g., VA examination (May 2012). VA treatment records show that the Veteran’s treating VA physician diagnosed “new DM neuropathy” in January 2012. See VA treatment record (January 5, 2012). In May 2012, a VA medical examiner opined that the Veteran’s peripheral neuropathy is not proximately due to his service-connected diabetes mellitus because his peripheral neuropathy preexisted his diabetes mellitus. The clinician further opined that the etiology of the Veteran’s peripheral neuropathy is likely multifactorial, to include his service-connected lumbar spine disability. Following the VA examiner’s unfavorable opinion, the Veteran’s treating VA physician continued the diagnosis of “DM neuropathy” and opined that the Veteran’s peripheral neuropathy is related to diabetes mellitus, given the Veteran’s well-established history of diabetes mellitus and exposure to Agent Orange. See Medical Opinion (February 18, 2014); See, e.g., VA treatment record (August 16, 2012; February 27, 2013); See also Active Problem List (listing “diabetic neuropathies”). Here, the Board finds that the VA examiner’s opinion is inadequate to the extent that it appears to have been predicated upon the inaccurate factual premise that the Veteran’s peripheral neuropathy preexisted his diabetes mellitus. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Indeed, VA treatment records show that diabetes mellitus began prior to the Veteran’s diagnosis of peripheral neuropathy. At best, the VA examiner’s unfavorable opinion is in relative equipoise with the favorable opinion the Veteran’s treating VA clinician. Additionally, the May 2012 VA examiner’s opinion attributes the Veteran’s peripheral neuropathy to his service-connected lumbar spine disability, which supports the claim of service connection. After resolving any doubt in the Veteran’s favor, the Board finds that the Veteran’s peripheral neuropathy is proximately due to or the result of his service-connected diabetes mellitus. Accordingly, service connection for peripheral neuropathy of the left and right lower extremities is warranted. 3. Left Shoulder Bursitis The Veteran seeks a compensable rating for left (minor) shoulder bursitis, which has been rated under Diagnostic Code 5203, on the basis of impairment of the clavicle or scapula. See, e.g., VA treatment record (February 28, 2013) (showing that the Veteran is right-handed). Under Diagnostic Code 5203, a 10 percent rating is warranted for malunion or nonunion without loose movement. A maximum 20 percent rating is warranted for dislocation or nonunion with loose movement. Under Diagnostic Code 5201, a 20 percent rating is warranted for limitation of motion of the minor arm to shoulder level or midway between the side and shoulder level. A maximum 30 percent rating is warranted for limitation to 25 degrees from the side. As detailed further below, the Veteran’s left shoulder disorder has manifested with pain and limitation of motion without impairment of the scapula or clavicle. The Board finds that Diagnostic Code 5201 provides the most appropriate, favorable criteria for evaluating the Veteran’s left shoulder disability. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of Diagnostic Code should be upheld so long as it is supported by explanation and evidence). In this regard, the rating criteria for clavicle and scapular impairment (Diagnostic Code 5203) are largely inapplicable as the Veteran’s shoulder disability has manifested with pain and limitation of motion without impairment of the scapula or clavicle. See VA treatment records (August 16, 2012; January 8, 2013); VA examination (October 2011). Additionally, Diagnostic Code 5201 is more favorable to the Veteran than Diagnostic Code 5203 because Diagnostic Code 5201 provides a minimum 20 percent rating, as opposed to Diagnostic Code 5203, which provides a minimum 10 percent rating. For these reasons, the Board will evaluate the Veteran’s left shoulder disability under Diagnostic Code 5201. The Veteran has consistently reported pain and difficulty reaching above shoulder level, with increased severity and limitation of motion upon repetitive motion and flares-ups. See, e.g., VA examination (October 2011). On VA examination and occupational therapy reports show that pain has limited left arm motion to 90 degrees, that is, shoulder level. See id.; VA treatment record (January 8, 2013). In November 2011, the clinician who performed the October 2011 VA examination opined that the Veteran’s current left shoulder arthritis is unlikely related to his service-connected bursitis. The Board observes that while the Veteran has been diagnosed with left shoulder arthritis, the evidence, namely the November 2011 opinion does not indicate whether the Veteran’s current shoulder symptoms are attributable to his service-connected bursitis or nonservice-connected arthritis. Where, as here, it is not possible to separate the effects of service-connected and nonservice-connected disabilities, reasonable doubt must be resolved in the Veteran’s favor and the symptoms in question attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In light of the lay and medical evidence of pain and corresponding functional impairment limiting motion of the left arm at least to shoulder level, a 20 percent rating is warranted under Diagnostic Code 5201. See Burton v. Shinseki, 25 Vet. App. 1 (2011); see also Sowers v. McDonald, 27 Vet. App. 472, 481-82 (2016) (noting that while there is a 10 percent rating available for the shoulder across all diagnostic codes, a 20 percent rating is the minimum compensable rating for the shoulder for limitation of motion). The remaining issue becomes one of entitlement to a rating in excess of 20 percent for left shoulder bursitis, which will be addressed further in the remand section. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for the left shoulder bursitis is remanded. With regard to the service-connected left shoulder disability, the Board finds that a new VA examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint (or for an explanation as to why such testing cannot be conducted). See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The most recent VA examination, which was conducted in October 2011, does not provide this information. Additionally, VA examination is needed to address functional limitations during flare-ups. On VA examination in October 2011, the Veteran reported flare-ups approximately twice weekly; however, the examination was not conducted during a flare-up, and the VA examiner did not estimate the loss of function during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. Entitlement to a compensable rating for residuals of fracture of the fifth digit of the right hand is remanded. The Veteran has been in receipt of disability benefits from the Social Security Administration (SSA). See, e.g., SSA Data (December 21, 2011). As records pertaining to these benefits may be relevant to the appeal, they must be obtained. 38 C.F.R. § 3.159(c)(2); see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). 3. Entitlement to a TDIU is remanded. The Veteran’s claim for TDIU is also remanded, as it is inextricably intertwined with the above-discussed increased rating claims. Additionally, as the October 2011 VA examiner opined that the Veteran is not suited for physical labor tasks that require lifting, pushing or pulling, further development is needed to identify the Veteran’s education and occupational experience. The matters are REMANDED for the following action: 1. Obtain complete SSA disability records for the Veteran, to include underlying medical records upon which any SSA disability decision was based. If such records are unavailable, the Veteran’s file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Give the Veteran an opportunity to clarify his work history and submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his of the nature, extent and severity of his right hand and left shoulder symptoms and the impact of his service-connected disabilities on his ability to work]. The Veteran should be provided an appropriate amount of time to submit this lay evidence 4. Schedule the Veteran for an examination of the current severity of his left shoulder disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also 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 left shoulder disability alone and discuss the effect of the Veteran’s left shoulder 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). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel