Citation Nr: 20044653 Decision Date: 07/06/20 Archive Date: 07/06/20 DOCKET NO. 16-04 834 DATE: July 6, 2020 ORDER The claim of entitlement to service connection for right shoulder disability, diagnosed as osteoarthritis and impingement syndrome, is granted. The claim of entitlement to service connection for left shoulder disability, diagnosed as osteoarthritis and impingement syndrome arthritis, is granted. The claim of entitlement to service connection for a right-hand finger disability, diagnosed as trigger finger, is granted. The claim of entitlement to service connection for a left-hand finger disability, diagnosed as trigger finger, is granted. The claim of entitlement to service connection for bilateral hearing loss is granted. The claim of entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s assertions of in-service noise exposure and the performance of strenuous duties associated with his military occupational specialty (MOS) are credible and consistent with the circumstances of his service. 2. Competent, probative evidence, to include opinions provided by a VA examiner and a private physician, weighs in favor of a finding that the Veteran’s current right and left shoulder disabilities are at likely as not the result of the strenuous duties the Veteran performed during his active service. 3. Competent, probative evidence, to include an opinion provided by a private clinician, weighs in favor of a finding that the Veteran’s current right and left trigger finger disabilities are more likely than not the result the strenuous duties the Veteran performed during his active service. 4. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for Department of Veterans Affairs (VA) purposes, and there is competent, credible, and probative lay and medical evidence, including opinions provided by a private physician and a private audiologist, indicating that there is at least as likely as not a link between the Veteran’s service, particularly his noise exposure therein, and his current bilateral hearing loss. 5. The record includes competent, credible, and probative lay assertions that the Veteran began to experience symptoms of tinnitus during active service that have recurred to the present, and competent, probative medical opinion evidence indicating that tinnitus is related to in-service noise exposure. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for right shoulder osteoarthritis and impingement syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for left shoulder osteoarthritis and impingement syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for a right-hand trigger finger disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for a left-hand trigger finger disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 6. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1970 to May 1971, and from September 1990 to December 1990, including service in Southwest Asia, during the Persian Gulf era. He also had an unverified period of Army Reserve service. This appeal before the Board of Veterans’ Appeals (Board) arose from a January 2014 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, inter alia, denied service connection for bilateral hearing loss, tinnitus, right and left shoulder disabilities, and finger conditions of the right and left hands. The Veteran filed a notice of disagreement (NOD) in August 2014, the AOJ issued a statement of the case (SOC) in January 2016, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) also in January 2016. In November 2018, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The determination as to whether each element of a claim is based on an analysis of all relevant evidence of record and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). If a chronic disease, such as arthritis or an organic disease of the nervous system (interpreted to include hearing loss and tinnitus), becomes manifested to a degree of ten percent within one year of separation from active service, then it is presumed to have been incurred during active service, even if there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also Fountain v. McDonald, 27 Vet. App. 258, 259 (2015) (holding that with evidence of acoustic trauma, tinnitus is considered an organic disease of the nervous system, falling within the parameters of 38 C.F.R. § 3.309(a)). For the showing of chronic diseases in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to establishing service connection based on continuity of symptomatology (in lieu of a medical nexus opinion) is limited to disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6(d). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. 1. Shoulder and Finger Disabilities The Veteran contends that his claimed shoulder and finger disabilities are the result of the strenuous duties that he performed as a petroleum supply specialist during his last period of active service, while serving in the Persian Gulf. First addressing the matter of a current disability, the medical evidence of record includes multiple private treatment reports and VA examination reports diagnosing the Veteran’s right and left shoulder and finger disabilities. With respect to the shoulder disabilities, an October 2019 VA examination report specifically diagnosed bilateral glenohumeral and acromioclavicular joint osteoarthritis. A March 2007 private orthopedic surgeon treatment reports noted a diagnosis of bilateral impingement syndrome. With respect to the Veteran’s claimed finger conditions, a July 2013 note provided by the Veteran’s private physician, T. A., M.D., stated that he had been treated for a trigger finger condition in 1999. In a July 2018 letter, the Veteran’s treating occupational therapist noted that the Veteran had been treated for trigger finger, involving his right index finger, and later his middle finger, since 1990. The clinician noted that the Veteran had had locking of the middle finger of his left hand, with persistent locking since May 2017. Additionally, a December 2013 VA examination report also confirmed the Veteran’s stenosing tenosynovitis (trigger finger) of the right index finger, with a noted date of diagnosis in 1999. As for the in-service injury or disease requirement for the claimed shoulder and finger disabilities, the Veteran’s service treatment records pertaining to his last period of service, from September to December 1990, do not appear to be of record. Even so, there is otherwise no documented evidence of any specific incident of in injury or complaints related to the Veteran’s shoulders or fingers during service. Notably, however, during his November 2018 Board hearing that Veteran reported that he did not seek treatment for these claimed disabilities during service. He reported noticing shoulder conditions as he was getting out of service, but thought it was due to his more recent inactivity at the time he was separating from Reserve service. Nonetheless, the Veteran specifically attributed his claimed shoulder and finger disabilities to the strenuous work he did during his active service. He maintained that while he performed the same duties during his Reserve service, the duties performed during his Persian Gulf deployment were more magnified and physically intensive. He described his duties as a petroleum specialist, which included fueling all of the equipment from a quarter-ton vehicle, defueling vehicles, and fueling helicopters and jet aircraft. He maintained that his shoulder pains presented gradually and that he was not aware of the extent of damage in his shoulder until he had to have surgery to repair a rotator cuff tear. In a November 2018 statement, the Veteran described his in-service duties in more detail, noting that he fueled and serviced all vehicles, to include apache helicopters, Phantom Fighter Jets, and large transport vehicles. He maintained that they did not have any heavy equipment to help move any of the supplies or fuel equipment, and that everything had to be moved by hand. His duties included carrying 55-gallon drums, and to load them above his head into large vehicles. He was also required to lift, connect, and disconnect fuel hoses onto various pieces of equipment to complete his mission duties. His duties were also described in a January 2020 letter provided by his treating orthopedic surgeon who further remarked that the Veteran’s job required movement and transporting of collapsible fuel tanks. Based on the Veteran’s credible assertions, confirmation of his MOS as petroleum supply specialist, preforming his duties for 12 years, as recorded in his DD Form 214, and the era and circumstances of his service in Southwest Asia during the Persian Gulf era, the Board finds the reports pertaining to his strenuous in-service duties to be credible and consistent with the evidence of record. As to the question of whether there exists a medical nexus between the current shoulder and finger disabilities and the Veteran’s active service, the record contains multiple favorable opinions on this point. With respect to the shoulder disabilities, in the October 2019 VA examination report, the examiner provided the opinion that the Veteran’s claimed shoulder disabilities were at least as likely as not incurred in or caused by a claimed in-service injury, event, or illness. In so opining, the examiner noted that the Veteran had 20 years of service which may have initiated or contributed to the amount of destruction to his shoulder joint, as part of an occupational hazard, working regular or over exertional duties while in the service. In a January 2020 letter, the Veteran’s treating orthopedic surgeon noted that the Veteran service history, and the fact that his MOS was known to be physically demanding, strenuous, hazardous, and dangerous. The physician further noted the Veteran’s treatment history of his right shoulder, and pointed out that he was an established patient that had suffered extreme pain in both shoulders since 1990. The physician further noted that the Veteran had suffered from two rotator cuff tears in both shoulder due to excessive and strenuous working conditions that he endured as a result of his military service. The physician stated that he agreed with the October 2019 VA examiner’s opinion on causation and pathology of the Veteran’s shoulder pain, dysfunction, and chronicity, noting that there was strong likelihood that the problems the Veteran had were directly related to his military service and duties related to heavy lifting. The physician concluded that the Veteran’s right and left shoulder conditions were a result of his working conditions during his military service. While both the October 2019 VA examiner and the Veteran’s private physician noted the Veteran’s overall military service, which included his Reserve service, in providing their opinions, and while the record does not contain specific evidence detailing the Veteran’s periods of Reserve service, to include periods of ACDUTRA and INACDUTRA, the record does include evidence of the Veteran’s periods of active service, to include his last period of service in the Persian Gulf, and his specific testimony that during that period of service, he performed the same duties, but on a more intensified scale. Thus, affording the Veteran the benefit of the doubt, the Board finds that these opinions satisfy the nexus requirement for service connection for the Veteran’s shoulder disabilities. With respect to the Veteran’s diagnosed trigger fingers of the right and left hands, in the July 2018 letter, his occupational therapist also noted the Veteran’s duties associated with his MOS, and particularly his reported duties during his last period of active service. The clinician noted that he had reviewed the Veteran’s treatment history, to include treatment of his right index and middle fingers since 1990. Based on the evidence, the clinician provided the opinion that the Veteran’s trigger finger conditions were the result of his strenuous work condition when on active duty, that required strenuous force to be applied when working in support of operations in the Persian Gulf. The clinician concluded that based on the Veteran’s job duties, it was more likely than not that his military service contributed to his trigger finger condition. Based on this opinion, the Board finds that the nexus requirement for service connection for the Veteran’s finger disabilities is satisfied. With respect to all opinions in favor of the Veteran’s shoulder and finger disability claims, the Board notes that the VA examiner, the Veteran’s treating orthopedic surgeon, and his treating occupational therapist were all familiar with his medical history pertaining to his shoulder and finger disabilities, and noted the Veteran’s credible reports pertaining to the onset of the disabilities, and showed familiarity with the Veteran’s in-service duties associated with his MOS. Consequently, the clinicians concluded that the Veteran’s shoulder and finger disabilities were at least as likely as not, or in the case of his finger disabilities, more likely than not, related to his military service, to include his period of active service. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). To the extent that the opinions relied on the Veteran’s lay reports, the Board emphasizes that VA is not free to ignore a medical opinion or pertinent medical findings (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject such a medical opinion based on its own medical judgment (see Obert v. Brown, 5 Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)), even if the opinion is based, in part, on lay assertions. In this case, the Board observes that the Veteran’s reports pertaining to the conditions he experienced during his Persian Gulf deployment and the onset and progress of his shoulder and finger symptoms are consistent and credible, and there are no contrary opinions of record. Reading the VA examiner and private clinical opinions together, in the context of the evidence of record, the Board finds that the opinions are of sufficient probative weight to warrant a finding that the Veteran’s current right and left shoulder and current right and left finger disabilities are at least as likely as not etiologically related to his active service. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56. Accordingly, given the facts noted above, and resolving all reasonable doubt in the Veteran’s favor on certain elements of the claims, the Board finds that the criteria for service connection for the Veteran’s diagnosed right and left shoulder, and right and left finger disabilities are met. 2. Bilateral Hearing Loss and Tinnitus Considering the pertinent evidence in light of the governing legal authority, and affording the Veteran the benefit of the doubt on certain elements of the claims, the Board finds that service connection for bilateral hearing loss and for tinnitus is warranted. As for the in-service injury or disease requirement for both claims, although there is no documented evidence of any one specific incident of acoustic trauma, in his November 2018 statement, the Veteran described the hazardous military noise exposure associated with his MOS duties, to specifically include fueling fighter helicopters and fighter jets, with ber minimum hearing protection—consisting of foam inserts in the ears. He additionally described working on generators running at a loud volume, as noted in a July 2014 letter from a private physician. The Board notes that the Veteran is competent to assert the occurrence of an in-service injury, to include in-service noise exposure. See, e.g., Grottveit v. Brown, 5 Vet. App. 91 (1991). Moreover, such reports are consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154. As the Board finds no reason to question of the Veteran’s assertions in this regard, they are deemed credible. As such, the Board finds that likely significant in-service noise exposure, which may have resulted in some acoustic trauma, has been established. As for the matter of a current disability, to have a ratable hearing loss disability for VA compensation purposes, the Veteran must have (or have had, at some point pertinent to the filing of his claim), sufficient hearing loss to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385. According to this regulation, impaired hearing will be considered a disability for compensation purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies are 26 dB or greater; or when speech recognition scores under the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the present case, the audiogram from a December 2013 VA audiology examination confirms that the Veteran has bilateral hearing loss to an extent recognized as a disability for VA purposes. Therefore, a current hearing loss disability has been established. As for tinnitus, the Board notes that the April 2016 VA examination report, the July 2014 private physician letter, and a May 2018 letter from a private audiologist all document the Veteran’s reports of tinnitus. Additionally, the Veteran testified as to having an onset of tinnitus, described as humming, during his last period of active service, which has progressively worsened. The Board finds this evidence is sufficient to support a finding that the Veteran currently has tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (providing that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when... a layperson is competent to identify the medical condition....”); Charles v. Principi, 16 Vet. App. 370 (2002) (stating that “ringing in the ears is capable of lay observation and, as such, a veteran is competent to testify as to that symptom”). As such, the remaining inquiry is whether there is competent, credible, and probative evidence establishing a medical nexus between current bilateral hearing loss and tinnitus, and the Veteran’s service, particularly, his conceded hazardous noise exposure therein. While the December 2013 VA examiner opined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of his military service. The examiner based the opinion on an apparent low probability of noise exposure based on the Veteran’s MOS, and an apparent shift in his hearing in 1988, prior to his last period of active service. Notably, the examiner did not provide any basis or explanation for her conclusion that the Veteran’s MOS had a low probability of noise exposure, and notably, her conclusion is in stark contrast to the extensive evidence of record indicated that he had significant hazardous noise exposure associated with his MOS during service. Thus, it appears that the examiner relied on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). With respect to tinnitus, the examiner concluded that the Veteran’s tinnitus was at least as likely as not a symptom associate with his hearing loss, as tinnitus was known to be a symptom associated with hearing loss. In the July 2014 letter, the Veteran’s private physician noted that he had been seeing the Veteran since September 2013, with concerns pertaining to his hearing loss and tinnitus. The physician noted that he had reviewed the Veteran’s service record in detail, and performed a detailed interview. Noting the Veteran’s in-service hazardous noise exposure, with minimal hearing protection, due to the nature of the Veteran’s work and twenty years of exposure during his Reserve service, the physician opined that the Veteran’s tinnitus and hearing loss were more likely than not caused or exacerbated by his military service. In his May 2018 letter, the Veteran’s private audiologist also noted the Veteran’s noise exposure, with an apparent noted high probability of such exposure associated with his MOS. The audiologist noted that the Veteran’s audiogram from 1990 revealed a significant threshold shift in both ears, which confirmed that he experienced noise exposure during his period of service. He also specifically noted that the 1990 audiogram reflected that the Veteran met the criteria for hearing loss in the right ear at that time. Based on the significant threshold shift in the 1990 audiogram, which indicated noise exposure on active duty, the Veteran’s reported decrease in hearing acuity during his active service, and his current hearing loss, noted to be beyond the normal progression for his age, the audiologist opined that it was at least as likely as not that the Veteran’s hearing loss was related to his military noise exposure/acoustic trauma. The audiologist further opined that given the foregoing, and the fact that excessive noise exposure was a known cause of tinnitus, it was at least as likely as not that the Veteran’s tinnitus was also a result of his military noise exposure. While the Board is unable to locate an audiogram from 1990, as the STRs from the Veteran’s last period of service are not of record, the Board otherwise observes that the July 2014 and May 2018 opinions associate the Veteran’s hearing loss with his hazardous noise exposure during service. Moreover, while the July 2014 physician’s opinion was based on the Veteran’s overall service, including Reserve service, the May 2018 audiologist’s opinions focused on the Veteran’s more recent, and reportedly significant noise exposure during his last period of active service, and the apparent significant threshold shift noted as a result of that service. In spite of the current apparent absence of the 1990 audiogram, the Board finds it reasonable to believe that the private audiologist indeed reviewed a copy of a 1990 audiogram, which would likely have been concurrent to his last period of active service, and where the audiologist pointed out that the Veteran met the criteria for a hearing loss disability at that point. Additionally, although the physician providing the July 2014 letter focused on the Veteran’s overall military service, the Board finds that the opinion is significantly probative when considering the Veteran’s significant likely noise exposure associated with his MOS duties, to include the more intensive duties performed during his last period of active service. Thus, the Board finds the opinions from both providers to of significant probative value. Both clinicians noted the Veteran’s history of noise exposure associated with his MOS duties, and provided clear opinions at least as likely as no relating the Veteran’s hearing loss and tinnitus to his military service, including his active service. See Nieves-Rodriguez, 22 Vet. App. at 301. To the extent that the opinions relied on the Veteran’s lay reports, the Board again emphasizes that VA is not free to ignore a medical opinion or pertinent medical findings (see Owens, 7 Vet. App. at 433), or to reject such a medical opinion based on its own medical judgment (see Obert, 5 Vet. App. 30 and Colvin, 1 Vet. App. 171), even if the opinion is based, in part, on lay assertions. In this case, the Board observes that the Veteran’s reports pertaining to his hazardous noise exposure, to particularly include during his Persian Gulf deployment, and the onset and progression of his hearing loss and tinnitus symptoms are consistent and credible. Reading the private clinical opinions together, in the context of the evidence of record, the Board finds that the opinions are of sufficient probative weight to warrant a finding that the Veteran’s current bilateral hearing loss at least as likely as not had its onset during his active service. Additionally, given the Veteran’s competent, credible, and probative assertions as to the onset and continuity of tinnitus symptoms, when considered in conjunction with the positive nexus opinions from the private clinicians, the Board finds that the evidence is sufficiently probative to find that current tinnitus at as likely as not had its onset during his active service. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56. (Continued on the next page) Given the facts noted above, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that the criteria for service connection for bilateral hearing loss and for tinnitus are met. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.