Citation Nr: 19106940 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 16-42 024 DATE: January 29, 2019 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a bilateral shoulder condition is granted. Entitlement to service connection for a gastrointestinal disorder is granted. REMANDED Entitlement to an initial compensable rating for migraines is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss was incurred in, or caused by, his military service. 2. The Veteran’s tinnitus was incurred in, or caused by, his military service. 3. The Veteran’s bilateral shoulder tendonitis was incurred in, or caused by, his military service. 4. The Veteran’s gastrointestinal disorder was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a bilateral shoulder condition have been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for a gastrointestinal disorder have been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1993 to July 1997 and from November 2003 to November 2004, with additional service in the reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. An October 2013 rating decision denied entitlement to service connection for diverticulitis, hiatal hernia with gastroesophageal reflux disease (GERD), hemorrhoids, left shoulder strain, right shoulder strain, hearing loss, tinnitus, and Helicobacter pylori. A November 2017 rating decision granted entitlement to service connection for chronic headaches, evaluated as noncompensable effective February 28, 2016. By request of the Veteran, his separate appeals from the October 2013 and November 2017 rating decisions have been merged into the current case before the Board. The Board has recharacterized the Veteran’s service connection claims for diverticulitis, hiatal hernia with GERD, hemorrhoids, and helicobacter pylori more broadly to include any gastrointestinal disability. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability). Service Connection 1. Entitlement to service connection for bilateral hearing loss and tinnitus 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(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). There is also a presumption of service connection for the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus, which are categorized as “organic diseases of the nervous system.” See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (defining tinnitus as an organic disease of the nervous system included under § 3.309(a), at least when there is evidence of acoustic trauma). Under this presumption, if the chronic disease manifested in service, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. When the condition noted during service is not shown to be chronic at the time, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under the presumption for chronic diseases. Id.; Walker, 708 F.3d at 1338-39. To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition “noted” during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain, 27 Vet. App. at 263-64. In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for bilateral hearing loss and tinnitus (as organic diseases of the nervous system under 38 C.F.R. § 3.309 (a)) if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The Veteran maintains that he suffers from bilateral hearing loss and tinnitus, which are the direct results of noise exposure during active service. He specifically asserts that he developed hearing loss and tinnitus during his active service as a result of his in-service exposure to traumatic noise, including significant amounts of weapons fire, and that his auditory pathology has continued to worsen since his discharge. See November 2016 Hearing Transcript. The Veteran has been diagnosed with bilateral hearing loss and tinnitus. See May 2015 Mass. Audiology Note; May 2015 Mass. Audiology Report (reflecting bilateral auditory thresholds in excess of 40 decibels for all frequencies). The Veteran has reported unprotected exposure to acoustic trauma during his active service, specifically during his time weapons training and as a weapons instructor. See August 2013 Statement in Support of Claim; February 2016 DRO Hearing Transcript; November 2016 Hearing Transcript. Moreover, the Veteran’s statements of his exposure to acoustic trauma have been consistent throughout the appeals process. Additionally, the Veteran’s military occupational specialties of range coach, machine gunner, and marksmanship instructor are indicative of involving a high probability of noise exposure during service. The Veteran is competent to report experiencing an injury and resultant auditory pathology in the form of hearing loss and tinnitus during service, as well as experiencing hearing loss and tinnitus symptoms since his separation from active service, as such are capable of lay observation. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, the Veteran is credible in his report of suffering auditory symptomatology during and since service. See Caluza v. Brown, 7 Vet. App. at 711, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). This credible report of a continuity of symptomatology suggests a link between his current hearing loss and tinnitus and his military service. See Duenas v. Principi, 18 Vet. App. 512 (2004). In sum, the Veteran has competently and credibly described suffering in-service acoustic trauma and reported a continuity of symptomatology of bilateral auditory pathology in the form of hearing loss and tinnitus during and since his active service. See Charles, 16 Vet. App. 370; Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). Accordingly, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. 2. Entitlement to service connection for a bilateral shoulder condition The Veteran asserts his bilateral shoulder condition is the result of his active duty service. Specifically, he states that his in-service motor vehicle accident, in addition to the physical demands of active service, caused him to develop a bilateral shoulder condition. See November 2016 Hearing Transcript. The Veteran has been diagnosed with tendinopathy of the bilateral shoulders. See March 2018 MRI Reports. Accordingly, the Board finds that the Veteran has a current disability. Davidson, 581 F. 3d 1313. The Veteran testified that he first noticed shoulder pain during his first period of active duty service. Specifically, he attributed the onset of his shoulder pain to an in-service motor vehicle accident and the physical requirements of service, including daily runs or marches in full gear. See February 2016 DRO Hearing Transcript. Additionally, the Veteran testified to experiencing shoulder pain during his second period of active duty service. In this regard, he stated he fell out of a vehicle during a training exercise, continued to carry gear and weapons weighing a combined 250 pounds, and would experience recoil from firing weapons. See November 2016 Hearing Transcript. The Board notes that the Veteran is competent to report his in-service incidents and subsequent shoulder symptomatology. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (finding that a veteran is competent to report on factual matters of which he has firsthand knowledge). The Board also finds these statements credible. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Baldwin v. Brown, 13 Vet. App. 1 (1999) (reflecting that determinations concerning the credibility of evidence are within the purview of the Board). In support of his claim, the Veteran submitted a statement by a physical therapist, which noted that the Veteran first experienced shoulder pain during his active duty service due to lifting heavy equipment and physical training. The physical therapist opined that it was likely that the Veteran’s shoulder pain began as a result of overuse and repeated trauma while serving as a machine gunner. The physical therapist rationalized that the Veteran’s bilateral shoulder signs and symptoms were consistent with rotator cuff impingement with possible tearing due to prior overuse. See June 2015 Bay State Physical Therapy Note. A July 2015 statement by the Veteran’s family doctor opined that the Veteran most likely contracted degradative joint disease of the bilateral shoulders during his active duty service. See July 2015 Lahey Primary Care Statement. Treatment notes from the Veteran’s private physician also relate his shoulder pain to his active duty service. See July 2015 Coastal Orthopedic Note; September 2015 Coastal Orthopedic Note; December 2015 Coastal Orthopedic Note. The Board notes there is a negative etiological opinion of record in the form of a September 2013 VA examination report medical opinion. The report opined that the Veteran’s left shoulder condition was not related to his military service. See September 2013 Medical Opinion. However, this examination report merely relied on the absence of clinical evidence from the Veteran’s service treatment records and did not adequately address the competent and credible statements of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and instead relied on the absence of evidence in the Veteran’s service medical records to provide a negative opinion). In sum, the criteria for entitlement to service connection for a bilateral shoulder condition have been satisfied. See Davidson, 581 F.3d 131. Accordingly, the Veteran’s claim is granted. 3. Entitlement to service connection for a gastrointestinal disorder, to include diverticulitis, hiatal hernia, hemorrhoids, and helicobacter pylori The Veteran asserts his gastrointestinal disorder is related to his active duty service. Specifically, he states that his gastrointestinal disorders are due to his exposure to non-potable water while he was stationed overseas. See September 2013 Statement in Support of Claim; February 2016 DRO Hearing Transcript; November 2016 Hearing Transcript. Throughout the appellate period, the Veteran has been treated for abdominal pain, Helicobacter Pylori gastritis, rectal bleeding, hemorrhoids, GERD, and acute diverticulitis. See March 2018 North Shore GI Statement. Accordingly, the Board finds that the Veteran has a current disability. Davidson, 581 F. 3d 1313. The Veteran reported first noticing his gastrointestinal symptoms during his second period of active duty service. See November 2016 Hearing Transcript (testifying to experiencing GERD overseas). The Veteran reported experiencing constant indigestion during his active duty service at his separation examination. See November 2003 Medical Assessment. The Board notes that the Veteran is competent to report his in-service, and subsequent, gastrointestinal symptomatology. See Washington, 19 Vet. App. at 368 (finding that a veteran is competent to report on factual matters of which he has firsthand knowledge). The Board also finds these statements credible. See Caluza, 7 Vet. App. at 506; Baldwin, 13 Vet. App. 1 (reflecting that determinations concerning the credibility of evidence are within the purview of the Board). A September 2013 VA examination report noted the Veteran continues to suffer from GERD and hiatal hernia since 2003, and he was first diagnosed with diverticulitis in 2004. See September 2013 Esophageal Conditions Disability Benefits Questionnaire (DBQ). Despite noting the initial onset of the Veteran’s gastrointestinal symptoms as occurring during his active duty service and continuing to the present, the examiner opined that the Veteran’s gastrointestinal disorders were not related to his military service. See September 2013 Medical Opinion. The Board finds the September 2013 opinion inadequate as it is contradictory and merely relies on the absence of clinical evidence from the Veteran’s service treatment records and did not adequately address the competent and credible statements of the Veteran. Barr, 21 Vet. App. at 312; Dalton, 21 Vet. App. 23 (an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and instead relied on the absence of evidence in the Veteran’s service medical records to provide a negative opinion). In support of his claim, the Veteran’s submitted a statement by his private family doctor which opined that the Veteran most likely contracted helicobacter pylori during his active duty service. See July 2015 Lahey Primary Care Statement. In sum, the Veteran has competently and credibly reported experiencing ongoing gastrointestinal symptomatology since his second period of active duty service. Additionally, competent medical evidence links the Veteran’s current gastrointestinal disorders to his military service. Accordingly, the criteria for entitlement to service connection for a gastrointestinal disorder have been met. Davidson, 581 F.3d 1313. REASONS FOR REMAND Entitlement to an initial compensable rating for migraines is remanded. In connection with his underlying claim of service connection for headaches and subsequent appeal for a higher initial disability rating, the Veteran underwent VA examinations in January 2017 and November 2018. At the January 2017 VA examination, the Veteran reported short, sharp headaches, and longer, dull headaches which last up to an hour. In November 2018, he reported bifrontal, prolonged, dull headaches which last up to a day. He further reported needing to lay down in the dark for bad headaches. Despite the Veteran’s report of needing to lay down in the dark, the examiner noted that he did not have characteristic prostrating attacks of headache pain. The Board finds that there is some discrepancy in the record regarding the type of headaches suffered by the Veteran, and their severity. For example, it was not clear whether the Veteran’s headaches may be equated to characteristic prostrating attacks, and if so, their frequency. Given that there is contradictory information in the record regarding the nature and severity of the headaches, another VA examination is warranted. 38 C.F.R. § 3.159(c)(4). Finally, as this matter is being remanded, the Veteran’s updated VA treatment records should be obtained. The matter is REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s VA treatment records, dated from December 2018, forward. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the severity of his headache disorder. The claims file, to include a copy of this remand, must be made available to the VA examiner, who must note its review. The examiner should use the appropriate Disability Benefits Questionnaire (DBQ) to assess the severity of the Veteran’s service-connected headache disorder. The examiner should discuss whether the Veteran’s headaches result in any characteristic prostrating attacks with an estimation as to the average number of any such attacks over the past several months, or whether the headaches have resulted in very frequent completely prostrating and prolonged attacks producing severe economic inadaptability. In this regard, the examiner must specifically describe, in narrative form, the frequency of the Veteran’s headaches which result in him needing to lay in a dark room. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel