Citation Nr: 18154902 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-54 098 DATE: December 4, 2018 ORDER Service connection for tinnitus is granted. A rating in excess of 20 percent for a left shoulder strain is denied. REMANDED Service connection for diastasis recti is remanded. Service connection for umbilical hernia is remanded. Service connection for a sleep disorder, to include insomnia and loss of sleep is remanded. Service connection for posttraumatic stress disorder is remanded. FINDINGS OF FACTS 1. There is at least an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus as a result of his military service. 2. The Veteran’s left shoulder disability does not result in limitation of motion, but is shown to be manifested by pain. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for an initial rating in excess of 20 percent for the Veteran’s left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2005 to March 2006, from January 2007 to September 2007, from May 2008 to August 2008, and from August 2009 to September 2010. This matter is on appeal from a May 2013 rating decision. 1. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his tinnitus is a result of his military service. He specifically asserts that it began during his deployment to Iraq, after exposure to hazardous noise. At a February 2013 VA examination, the Veteran reported recurrent tinnitus that began after returning from Iraq. The examiner noted that the Veteran has a diagnosis of hearing loss and opined that it was at least as likely as not that the Veteran’s tinnitus is associated with hearing loss, rather than his military service. Additionally, the examiner explained that tinnitus has also been related to multiple conditions such as brain injury, depression, anxiety, high blood pressure, medications, and vascular changes in the inner ear caused by aging. If a reasonable nexus cannot be established between the Veteran’s hearing loss and military service, it is also difficult to establish a direct link between tinnitus and service since tinnitus is most often considered a symptom of hearing loss. Given the Veteran’s duties in service, which includes working with vehicles and helicopters, the Board concedes to some degree of military noise exposure. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran’s statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds that the Veteran’s statements to the effect that he first noticed tinnitus during service are credible. The Veteran has not attempted to bolster or exaggerate his symptoms. Therefore, the evidence in this case is evenly balanced enough as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b). As such, the criteria for service connection for tinnitus have been met. Increased Rating By way of history, the Veteran was granted service connection for a left shoulder strain at 10 percent, effective December 13, 2012, by a May 2013 rating decision. It was later increased to 20 percent, with an earlier effective date of July 2012, by an August 2016 rating decision. The Veteran’s left shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5201, which provides that limitation of motion of an arm at the shoulder level warrants a 20 percent rating whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 30 percent rating is warranted for the major extremity and 20 percent for the minor extremity. When motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and 30 percent for the minor extremity. 38 C.F.R. § 4.71a. The Veteran’s treatment records do not show findings consistent with a higher rating for his left shoulder disability. For example, the Veteran’s April 2013 VA examination showed that he had full range of motion in his left shoulder, with no objective evidence of pain on motion. While he reported some localized tenderness, he demonstrated normal strength in both shoulder abduction and forward flexion. There was no guarding or evidence of ankylosis. His May 2016 VA examination reported no fracture-dislocation or degenerative change. The Veteran reported that he had felt his shoulder pop out of its joint and experienced pain for 24 hours. He complained of mild to moderate pain, felt daily. However, upon examination, he retained a full range of motion. A repetitive use testing resulted in no additional limitation of motion. He retained normal shoulder forward flexion and abduction strength. Aside from the Veteran’s statement that his disability warrants a 20 percent rating, the evidence of record does not reflect symptoms that correspond to ratings in excess of 20 percent. At no point during the period on appeal was the range of motion in the Veteran’s left shoulder shown to be functionally limited to midway between his side and shoulder or less. As such, the Veteran is not found to meet the criteria for a higher initial rating. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, despite complaints of pain, the Veteran retained full range of motion, even when considering the effects of the pain. In addition, a repetitive use test did not result in limited range of motion or strength. Thus, greater ratings for limitations of range of motion are not warranted under DeLuca. While the Veteran has been shown to experience left shoulder pain, the United States Court of Appeals for Veterans Claims (Court) has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell, 25 Vet. App. 32, 36-38. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 40. Here, the Veteran consistently retained range of motion in excess of that contemplated for a 30 percent rating. As such, there is no basis for a rating in excess of 20 percent. As described, the criteria for an initial schedular rating in excess of 20 percent for a left shoulder disability have not been met, and his claim is denied. REASONS FOR REMAND The Board notes that a rating decision was issued in May 2013, denying entitlement to service connection for diastasis recti, umbilical hernia, sleep disorder, and PTSD. The Veteran timely filed a Notice of disagreement with that rating decision in May 2014, which he contested the denial of service connection. A statement of case was issued in August 2016, but did not address the listed issues. The Veteran filed a VA Form 9, again contesting the denial of the issues. The United States Court of Appeals for Veterans Claims has held that the filing of a notice of disagreement initiates the appeal process, and that the failure of the AOJ to issue a statement of the case is a procedural defect requiring a remand. See Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the issues of entitlement to service connection for diastasis recti, umbilical hernia, sleep disorder, and PTSD must be remanded by the Board to allow AOJ to issue a Statement of Case on these claims. The matters are REMANDED for the following action: Issue a statement of case (SOC) addressing entitlement to service connection for diastasis recti, umbilical hernia, sleep disorder, and PTSD. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel