Citation Nr: 20043791 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 16-63 970 DATE: June 29, 2020 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. An increased rating for residuals of the right shoulder, right shoulder disability, is granted to 20 percent. REMANDED Entitlement to an increased rating for degenerative disc disease of the thoracolumbar spine is remanded. Entitlement to service connection for right upper extremity is remanded. Entitlement to service connection for left upper extremity is remanded. FINDINGS OF FACT 1. The Veteran has current bilateral hearing loss for VA purposes, and he experienced hearing loss symptoms during and since his separation from service. 2. The Veteran has experienced tinnitus, ringing in the ears, during service and continuously afterwards. 3. The Veteran is left hand dominant, and therefore his right shoulder disability should be categorized under rating for the minor extremity. 4. The evidence is at least in equipoise that the Veteran’s right shoulder disability manifested with functional loss at shoulder level throughout the entire period on appeal. 5. The preponderance of the evidence is against a finding that the Veteran’s right shoulder disability manifested with limitation of motion 25 degrees or less from the side. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for an increased rating to 20 percent, but no higher, for residuals of the right shoulder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to November 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2015 and August 2017 rating decisions. In the Veteran’s December 2016 Form 9, he limited his appeal to degenerative disc disease of the thoracolumbar spine, right shoulder condition, bilateral hearing loss and tinnitus. The Veteran elected not to appeal the denial for service connection for uveitis (claimed as vision issues due to flash burns). See Form 9 received 12/20/2016. As such, that issue is not before the Board. In March 2020, the Veteran appeared before the undersigned Veterans Law Judge at a travel board hearing seated in Portland, Oregon. A transcript of the hearing has been associated with the electronic file. Service Connection The Veteran is currently diagnosed, per a July 2015 VA examination, with bilateral sensorineural hearing loss and tinnitus (as organic diseases of the nervous system) which are "chronic" diseases under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Where a veteran served ninety days or more of active service and the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for bilateral hearing loss is granted. 2. Service connection for tinnitus is granted. The Veteran contends that his bilateral hearing loss and tinnitus was incurred during his active military and has been continuous since service. See VA 21-4138 Statement in support of Claim received 12/10/2014. Specifically, the Veteran testified that he did not have hearing issues prior to service and his issues began when as a Gunner’s Mate he was exposed to noise from not wearing hearing protection. See Hearing Transcript received 3/02/2020 at page 3 and 6. The Veteran also testified that his tinnitus began when he entered service and was periodic. Id. at page 5. As noted above, the July 2015 VA examiner diagnosed the Veteran with sensorineural hearing loss in both ears and the puretone thresholds reflect that he has a current bilateral hearing loss disability per 38 C.F.R. § 3.385. With regard to etiology for the right ear, the examiner opined that there was no threshold shift from entrance to separation and therefore the Veteran’s hearing loss was less likely than not due to service. For the left ear, the examiner opined that hearing loss was present before service, stating that entrance exam showed mild hearing loss at 6000 Hz in the left ear. However, the examiner opined that there was no threshold shift from entrance to separation. Further, the examiner opined that his pre-existing hearing loss was not aggravated beyond normal progression by his service. See C&P Exam received 7/14/2015 at pages 3 and 4; see also McKinney v. McDonald, 28 Vet. App. 15, 25 (2016) (holding that the presumption of soundness applies when the level of hearing loss noted on an entrance examination does not satisfy § 3.385); cf. 38 C.F.R. § 3.385 (stating that for VA purposes, in pertinent part, that impaired hearing will be considered to be a disability when 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). The regulation does not consider data at 6000 Hertz and the data points from the Hertz noted in the regulation are considered normal. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (stating that normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). As such, the Board finds that the Veteran is presumed sound regarding the left ear. A review of the Veteran’s STRs revealed threshold shifts of +15 in the left and right ear at 3000 Hz for audiograms between September 1983 and May 1986. See STR received 12/24/2014 at page 29. An audiogram taken later in May 1986 showed a +15 at 3000 Hz and a +45 at 4000 Hz in the right ear. Id. Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran’s bilateral hearing loss was incurred during service as the objective evidence of record, specifically the threshold shifts during his service show a change in his bilateral hearing status during service. 38 C.F.R. § 3.303(a). The VA examiner’s opinion is given minimal weight because it failed to note the aforementioned threshold shifts. Further, the Board finds that the VA examiner’s opinion based on aggravation in the left ear was improper since the Veteran was did not have hearing loss for VA purposes at entrance, and therefore was sound at entrance. 38 C.F.R. § 3.385. In addition, the Board finds that the Veteran’s testimony is credible and competent with regard to his testimony of experiencing periodic ringing of the ears and its onset in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, service connection for bilateral hearing loss and tinnitus is warranted. See 38 C.F.R. §§ 3.102, 3.309(a), 3.303(b). 3. An increased rating for residuals of the right shoulder is granted to 20 percent, but no higher, from the date of claim, December 10, 2014. The Veteran contends that he is entitled to a higher rating for residuals of right shoulder (afterwards, right shoulder disability) because he is unable to perform tasks at shoulder height and can no longer use a ladder at his mechanic’s job. See Hearing Transcript received 3/02/2020 at page 11. The Veteran confirmed that he is left hand dominant. Id. The Board notes that the Veteran has been service connected with a non-compensable rating for a right shoulder disability since December 2014. This appeal for a compensable rating stems from the initial grant of service connection. The Veteran’s right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to ‘limitation of motion’ of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Veteran was provided a compensation and pension examination in September 2015. The Veteran was diagnosed with subacromial/subdeltoid bursitis in both shoulders, no other condition was diagnosed. At the examination the Veteran stated that he could not work at shoulder level. He noted that he experienced flare-ups that would cause pain with extended use or when requiring him to do work at or over shoulder level. He stated that he could no longer water ski because of the pain in his right shoulder. See C&P Exam received 9/01/2015 at page 3. The Veteran was positive for the Hawkins’ Impingement Test, however diagnostic tests were unremarkable. His range of motion (ROM) showed flexion at 0 to 150; abduction at 0 to 135; external rotation at 0 to 90; and internal rotation at 0 to 80. The Veteran was provided another compensation and pension examination for his right shoulder disability in July 2017. At the examination the Veteran was diagnosed with shoulder impingement syndrome in both shoulders with diagnosis date of 2015. His ROM showed flexion at 0 to 120; abduction at 0 to 110; external rotation at 0 to 45; and internal rotation at 0 to 45. The examination was negative for ankylosis and no rotator cuff conditions were found. The July 2017 examiner noted that the diagnosis of impingement referred back to the findings of the September 2015 C&P examination. See C&P Exam received 7/20/2017. At the March 2020 hearing, the Veteran testified and demonstrated that he was unable to lift his arms at shoulder level. See Hearing Transcript received 3/02/2020 at page 10. He further stated that the functional loss due to his right shoulder has impacted his ability to do his job as a mechanic. Id. at page 7. With regard to the ROM testing on the examination, the Veteran stated that he pushed past the pain on the examination and had to take pain medication afterwards. Id. at page 8. The Board finds that the evidence is at least in equipoise that the Veteran has painful limitation of motion at shoulder level for the entire period, which would entitle him to a 20 percent rating. The Board finds the Veteran’s testimony consistent and credible that he experiences pain and limited range of motion at or near shoulder level. Particularly, the Veteran stated in his September 2015 examination that he was unable to climb a ladder and water ski, both of which would require functionality at shoulder level. Additionally, though the Veterans ROM testing showed higher functionality than what was stated by the Veteran, the September 2015 examiner was not able to state the impact of flare-ups without resorting to speculation and during the July 2017 examination repetitive use testing showed a decrease in ROM by at least 5 degrees after just three repetitions. See C&P Exam received 7/20/2017 at page 6. Accordingly, the Board finds that the evidence, to include the Veteran’s credible lay statements, is in equipoise that he has limitation of motion in his right shoulder, minor, at shoulder level. As such the benefit of the doubt doctrine is applicable, and a higher rating of 20 percent is warranted. See 38 C.F.R. §§ 4.3, 4.59; see also Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) (holding that § 4.59 does not "condition the award of a minimum compensable evaluation . . . on the presence of range of motion measurements in th[e] DC; rather, it conditions the award on evidence of actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC"). That said, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for his right shoulder disability. The evidence of record shows that the Veteran is left-handed. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and weakened movement, i.e., his inability to perform certain job tasks. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the competent lay and medical statements, to include the demonstration at the 2020 hearing, does not show a loss of 25 degrees from the side of the minor extremity. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code as the competent evidence of record does not reflect evidence of ankylosis or fibrous union of the humerus. See 38 C.F.R. § 4.71a. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 30 percent for right shoulder disability. REASONS FOR REMAND 1. Entitlement to an increased rating for degenerative disc disease of the thoracolumbar spine is remanded. The Veteran testified that he has a hard time tying his shoes and completing household chores. See Hearing Transcript received 3/02/2020 at page 6. He further testified that the C&P examination was not an accurate test of his range of motion because he pushed past the pain during the examination. Id. at page 8. Consequently, since the Veteran testified that his condition was more severe than July 2017 examination indicated, the Board finds that a remand is warranted to assess the Veteran’s current level of impairment. 38 C.F.R. § 3.327(a). The Board makes no credibility finding with regard to the Veteran’s testimony of his current degenerative disc disease with this remand but will instead determine that at final adjudication. 2. Entitlement to service connection for right upper extremity is remanded. 3. Entitlement to service connection for left upper extremity is remanded. At the hearing, the Veteran testified that he wanted to submit updated treatment records and an examination from his private physician. However, the Veteran’s representative informed the Board that his scheduled appointment was cancelled due to COVID-19. See VA 21-4138 Statement in Support of Claim received 5/04/2020. The Board notes that an MRI of the right shoulder from June 2020 has been incorporated into the record. Although the representative requested an extension, the Board finds that a remand is warranted to give the Veteran the opportunity to submit additional evidence and notes that information gather at the lumbar spine examination could be relevant to these matters. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (holding that “where a decision on one issue would have a ‘significant impact’ upon another, and that impact in turn ‘could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources,’ the two claims are inextricably intertwined”). The Board also finds that an addendum opinion from the VA examiner is needed to address the subsequent medical and lay evidence on the record since the July 2017 examination and would be helpful in adjudication of these two issues. The matters are REMANDED for the following actions: 1. Inform the Veteran to submit any relevant evidence to VA regarding this lumbar spine and/or right/left upper extremity issues on appeal or he may authorize VA via the proper form to obtain any such outstanding records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of degenerative disc disease of the thoracolumbar spine. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner is to test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). 3. After completing #1, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s claimed left and right upper extremity condition is at least as likely as not 1) related to or proximately due to any service-connected disability; OR 2) aggravated beyond its natural progression by a service-connected disability (Continued on the next page)   A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training).. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.