Citation Nr: 18151290 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 15-03 873 DATE: November 20, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to an increased rating, in excess of 10 percent, for recurrent shoulder dislocation of the left shoulder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1998 to July 1999. The Veteran appeals a May 2014 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran requested a Board hearing in his January 2015 VA Form 9. The Veteran did not appear at his August 2016 Board hearing. Rather, the Veteran’s representative submitted an appellate brief in October 2018. Entitlement to service connection for bilateral hearing loss Entitlement to service connection for tinnitus The issues of service connection for bilateral hearing loss and tinnitus are remanded for further development. The Board acknowledges that the Veteran was not provided a VA examination for the above conditions. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, we find that the evidence of record indicates that the Veteran’s tinnitus and bilateral hearing loss may be associated with his time aboard the U.S.S. Enterprise. The Veteran stated that he was a part of several flight deck crews, and recalls the constant noise of jets taking off and landing. See January 2014 Statement in Support; see also October 2018 Appellate Brief. Further, the Veteran contends that his hearing loss has become more evident, and he has difficulty hearing his spouse, family, and friends. See January 2014 Statement in Support. He further claims that his tinnitus seems to be more intense. See id. As such, a VA examination is warranted to access the Veteran’s hearing disabilities. Entitlement to an increased rating for a left shoulder disability The issue of an increased rating, in excess of 10 percent, for a recurrent shoulder dislocation of the left shoulder is remanded for further development. The Veteran underwent a VA examination in April 2014. During the exam, the Veteran reported a sharp burning pain on his left side, and increased pain in the left shoulder when it hangs down by his side. When the pain flare ups, the Veteran reports that he is unable to lift items above his head with the left arm due to increased pain and weakness in his left shoulder. The VA examiner reported that functional loss presented itself in the form of less movement when normal, weakened movement, and pain on movement. However, the VA examiner opined that it would be mere speculation to attempt to detail additional limitations due to pain, weakness, fatigability, or incoordination during flare ups or when the joint is used repeatedly. The Board notes that the VA examiner offered no rationale as to why this was a situation in which “mere speculation” would arise. As the U.S. Court of Appeals for Veterans Claims stated in Jones v. Shinseki, “a bald statement that it would be speculative for the examiner to render an opinion as to etiology or diagnosis is fraught with ambiguity.” 23 Vet. App. 382, 390 (2010). Further, the Veteran reported in his November 2014 Notice of Disagreement, that his left shoulder continues to worsen, and that his range of motion has become more limited. The Veteran asserts that the worsened condition has caused him to have back pain because he must lift continuously with his right arm. In short, a new VA examination is necessary and warranted to get a clear picture of the Veteran’s left shoulder disability. The matters are REMANDED for the following action: 1. Obtain and associate with the record all VA and private treatment records for the Veteran. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. If possible, the Veteran and his representative are asked to submit these records themselves. Provide the Veteran with the appropriate forms to obtain any private treatment records, or submit them. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. The examiner must opine whether the Veteran’s bilateral hearing loss and/or tinnitus is at least as likely as not related to an in-service noise exposure aboard the U.S.S. Enterprise as a part of the flight deck crew. 3. Schedule the Veteran for a VA examination to determine the nature and extent of his service-connected left shoulder disability. The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ). The DBQ should be filled out completely as relevant. The examiner should specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and any paired joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should specifically address the Veteran's functional loss due to pain weakness, fatigability and incoordination as well as any other factors which are present. The functional loss should be described. The examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran himself. The examiner should elicit relevant information as to the Veteran's flares with a description of the additional functional loss, if any, the Veteran has during flares. The examiner should estimate the Veteran's functional loss due to flares based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so. In discussing the relevant clinical findings, the examiner should specifically note the Veteran's current complaints, symptoms, any interference with daily and/or occupational activities, and the level of disability. The examiner must also provide information concerning the functional impairment that results from the service-connected left shoulder disability which may affect his ability to function and perform tasks in various occupational situations. Any opinions expressed by the examiner must be accompanied by a complete rationale. 4. Then, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel