Citation Nr: 20003233 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-22 501A DATE: January 14, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for right shoulder condition, diagnosed as right shoulder degenerative arthritis and rotator cuff syndrome, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is remanded. Entitlement to a rating in excess of 10 percent prior to September 20, 2016, and in excess of 20 percent from September 20, 2016, for degenerative joint disease (DJD) of the lumbar spine with intervertebral disc syndrome, is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the Veteran's bilateral hearing loss is related to his in-service noise exposure 2. Resolving all reasonable doubt in favor of the Veteran, the Veteran's tinnitus is related to his in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1977 to May 1988 with subsequent service in the Reserves. This appeal to the Board of Veteran’s Appeals (Board) arose from September 2014 and January 2018 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has perfected the appeal. See September 2014, April 2015, and February 2018 Notices of Disagreement; April 2017 and April 2018 Statements of the Case (SOC); May 2017 and May 2018 Substantive Appeals (VA Form 9). The Veteran requested a hearing before the Board. The requested hearing was conducted in October 2019 by the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In a June 2017 rating decision, the RO granted an increased rating of 20 percent for DJD of the lumbar spine, effective September 20, 2016. Because the maximum benefit was not granted now or during the pendency of the appeal period, the issue of entitlement to a higher evaluation remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veteran’s claim for total disability rating based on individual unemployability is currently being developed under the Appeals Modernization Act. Thus, this issue is not part of this appeal. Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. § 3.303(a). Service connection can also be granted for chronic disabilities, such as other organic diseases of the nervous system (such as sensorineural hearing loss and tinnitus), if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. § 3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. § 3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. § 3.309(a). When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran contends that he developed hearing loss and tinnitus due to his service. The evidence of the record establishes that the Veteran has current diagnoses of bilateral hearing loss and tinnitus. See August 2013 VA Examination Report. Regarding an in-service injury or event, the Veteran asserted that he was on the flight line and in the supply warehouse as part of his duties. In those areas, the Veteran stated he was exposed to loud noises. The Veteran’s military occupational specialty (MOS) was a material storage and handling specialist. His service treatment records note that the Veteran was routinely exposed to hazardous noise. The Veteran had hearing conservation audiograms while in-service. The Board finds that that in-service noise exposure has been established. Regarding whether there is a nexus between the Veteran’s current conditions and in-service noise exposure, the August 2013 VA examiner opined that it was at least as likely as not that his hearing loss and tinnitus was caused by in-service noise exposure. The examiner explained the Veteran reported working on the flight line and in the supply warehouse and was not enforced to wear hearing protection. The examiner had not reviewed any evidence in the Veteran’s claims file. In a February 2014 addendum opinion, the VA clinician opined that it was less likely than not that his hearing loss or tinnitus was due to his service. The rationale provided was that the Veteran had normal hearing at enlistment and discharge and that he denied combat exposure. The clinician did opine that the Veteran’s tinnitus is due to his hearing loss that occurred after his discharge from service. The February 2014 addendum opinion was based on normal hearing while in service. The absence of hearing loss disability in service is not an absolute bar to entitlement to service connection. The examiner did not address the Veteran’s assertions that he experienced diminished hearing and ringing in the ears once separated from service. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue"). In this case, the Board finds it pertinent that hearing loss and tinnitus are considered organic diseases of the nervous system for VA purposes and, as such, are conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). As a result, the Veteran's statements regarding continuity of symptomatology may be sufficient for purposes of establishing service connection. In this matter, the Veteran has asserted that he experienced diminished and ringing in his ears within the first year after separation from service, once he was removed from the hazardous noise. Since then, the Veteran has noticed the ringing and buzzing became more intense. The Veteran stated that he could not figure out what was happening and did not seek help immediately because he thought it was normal due to the amount of time spent on the flight line during service. The Veteran did eventually seek treatment for his ongoing symptoms. After a thorough review and consideration of the evidence above, the Board finds that the Veteran's statements and testimony as to the onset and continuity of symptomatology regarding his hearing loss and tinnitus to be credible. His statements have remained consistent, and the service records, both medical and personnel, support such statements. The service records indicate that the Veteran was routinely exposed to hazardous noise. There is nothing on the record to show that the Veteran had hearing loss prior to service, or that he experienced hazardous noise exposure post-service. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's hearing loss and tinnitus are due to his noise exposure during his military service. The Board finds that the criteria for service connection for the Veteran's bilateral hearing loss and tinnitus have been met and entitlement to service connection is warranted. REASONS FOR REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran’s claim of entitlement to service connection for a right shoulder condition and an acquired psychiatric disorder, and entitlement to an increased rating for his back disability. 1. Entitlement to service connection for right shoulder condition (diagnosed as degenerative arthritis and rotator cuff syndrome. The Veteran contends that his current right shoulder condition was incurred in service. The evidence of the record shows that the Veteran has current diagnoses of a right shoulder condition. VA examination reports indicate that the Veteran has degenerative arthritis in his right shoulder. Private medical records indicate that the Veteran has rotator cuff syndrome in his right shoulder. Regarding an in-service injury or event, in November 1981, the Veteran’s right shoulder and upper back was examined, with no significant abnormalities found. In June 1985, the Veteran injured his right shoulder while playing basketball. It was also noted that there was tenderness over the rotator cuff. The assessment noted was “rotator cuff injury.” The Veteran has also asserted that he experienced pain while doing heavy lifting during his service. See October 2019 Board Hearing Transcript. Regarding whether there is a nexus, in February 2014, the VA clinician opined that it was less likely than not that his right shoulder condition incurred in or was caused by his in-service injury. The rationale provided was that although the June 1985 diagnosis was “rotator injury”, there was no symptoms or physical findings of this. The clinician continued that the Veteran complained of bilateral shoulder pain post-service on April 2013, noting the duration of the pain to be one year, which would be 25 years after service. The clinician remarked that the Veteran did not indicate any shoulder issues from 1985 to 2013. The clinician concluded that this indicated that the in-service injury produced no indication of a chronic shoulder problem. In a March 2014 private medical record, the doctor noted that the Veteran reported an injury in 1979 while in the military in relation to his right shoulder pain. The Veteran reported being told that he may have damaged his rotator cuff “but we can probably get [him] through it.” The Veteran reported experiencing pain for at least 25 years and recently became worse. The doctor indicated radiographs showed type 2 acromion, erosive changes in the AC joint consistent with heavy lifting, exercise, and activity, which is what is often seen in weightlifters, football players, military recruits, and firearm. The impression noted was probable rotator cuff tear with advancing arthropathy. In the recommendations, the doctor stated that the Veteran’s condition has been going on since in-service injury and that it is progressively getting worse. The doctor continued that the condition is “significantly chronic” and maybe be difficult to heal. The Board determines that these opinions are not sufficient in determining the nexus. The February 2014 inaccurately states that the first post-service complaint of shoulder pain was in April 2013. A review of the evidence shows that the Veteran complained of shoulder pain in March 2003 and in August 2011. Additionally, while the examiner acknowledges the in-service diagnosis of rotator cuff injury, the examiner does not address the April 2013 diagnosis of rotator cuff syndrome, and whether it is related to the June 1985 diagnosis. The March 2014 private medical opinion merely restates the history as told by the Veteran and does not provide a rationale as to why the “probable rotator cuff” has been a condition since service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Based on this evidence, the Board finds that a remand is necessary in order to obtain an opinion that adequately clarifies the diagnosis and etiology of the Veteran’s right shoulder condition. 2. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, as secondary to service-connected disabilities. The Veteran contends that he developed a psychiatric disorder due to his service-connected disabilities, specifically his back disability. In November 2017, the VA examiner opined that it was less likely than not that the Veteran’s psychiatric condition was due to or caused by his service-connected disabilities, which includes back condition, radiculopathy in the lower extremities, and tension headaches. The rationale provided was that although the Veteran endorsed depressive symptoms at the examination, he did not endorse them in the VA medical center (VAMC) in Houston before the November 2017 examination. The examiner stated that the Veteran denied depressive symptoms in June 2013, July 2014, and September 2017. The Veteran submitted VA treatment records dated April 2019 in which the Veteran endorsed depressive symptoms related to his service and his disabilities. The Veteran’s wife also endorsed the Veteran’s symptoms and asserted she noticed a change in the Veteran since his service and developing his disabilities. She also asserted that she noticed the Veteran’s behavior change when he was transferred to Louisiana in 1986. The diagnosis provided was depression secondary to lower back condition and headaches, based on the history provided by the Veteran. Based on this evidence, the Board finds that a remand is necessary in order to obtain an opinion that extensively addresses whether the Veteran has depression or any other psychiatric disorder secondary to his service-connected disabilities, or directly related to his service. 3. Entitlement to a rating in excess of 10 percent prior to September 20, 2016, and in excess of 20 percent from September 20, 2016 for degenerative joint disease (DJD) of the lumbar spine with intervertebral disc syndrome. At the October 2019 Board Hearing, the Veteran asserted that his symptoms have worsen since the last examination conducted in February 2019. Further, the Veteran stated he was informed that from the first magnetic resonance imaging (MRI) to the one taken in 2018, the L4-L5 has gotten worse. The Veteran stated he is not able to perform the activities he once was able to anymore due to his back symptoms. The Veteran submitted a private medical record from March 2019 regarding severe back pain and how it limits his activities. X-ray findings revealed “grade 1 spondylolisthesis at L4-6.” There were no measures of range of motion noted in that record. Given that the Veteran has asserted worsening of symptoms since the last examination, and there is medical evidence that may indicate worsening, a new examination to access the current severity of the Veteran’s back condition must be provided during this remand. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his right shoulder condition, psychiatric disorder, and back condition. The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations. Additionally, all updated VA treatment records should be obtained. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Once all available, relevant medical records have been received, and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran's right shoulder condition and psychiatric disorder. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review (and if necessary, examination), the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries: Right Shoulder Condition (a) Please provide all diagnoses of the Veteran’s right shoulder condition, specifying whether the Veteran does have a rotator cuff injury or syndrome. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder condition was incurred in, caused by, or etiologically related to the Veteran's service? The examiner should consider and address the following when rendering the opinnion: (1) The June 1985 service treatment record and diagnosis of rotator cuff injury. (2) The Veteran’s assertions regarding pain due to heavy lifting while in service. (3) The March 2003 and August 2011 post-service treatment records documenting the Veteran’s complaints of shoulder pain. (4) The April 2013 and March 2014 post-service diagnosis of rotator cuff syndrome and probable rotator cuff tear. (5) The Veteran’s lay statements at the October 2019 Board Hearing that the Hydrocodone he used to treat his back helped alleviate the shoulder pain, which led him not to seek immediate treatment. Acquired Psychiatric Disorder (a) Does the Veteran have a current diagnosis of a psychiatric disorder? If so, please provide the diagnosis or diagnoses. (b) If the answer to (a) is yes, is it at least as likely as not (a 50 percent or greater probability) that any such disorder was incurred in, caused by, or etiologically related to the Veteran's service? (c) Is it at least as likely as not (a 50 percent or greater probability) that any such disorder is due to, or aggravated (i.e., worsened beyond the natural progress) by a service-connected disability (back condition, bilateral lower extremity radiculopathy, and tension headaches)? If a psychiatric disorder shown is deemed not to be due to, or aggravated by a service-connected disability, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. 3. Schedule the Veteran for an examination to determine the current nature and severity of his service-connected back disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The claims file, including the March 2019 private medical record, and a copy of this REMAND should be made available to the examiner for review. The examiner should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. The examiner should also note whether the low back disability results in incapacitating episodes, and indicate the total duration of any such episodes. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. 3. Then, review the record to ensure that all the indicated directives above have been completed, and readjudicate the claim. If any benefit sought remains denied, furnish to the Veteran (and his representative) a supplemental statement of the case (SSOC). Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.