Citation Nr: 21000631 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-08 045 DATE: January 5, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to an initial rating of 20 percent disabled, but no higher, for a left shoulder disorder from October 31, 2009 to May 23, 2016, is warranted; entitlement to a rating in excess of 20 percent from May 23, 2016 to December 8, 2018, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a cervical spine disorder prior to April 24, 2018, is remanded. Entitlement to an initial rating in excess of 10 percent for a thoracolumbar spine disorder prior to December 9, 2018, is remanded. FINDINGS OF FACT 1. The Veteran does not manifest right ear hearing loss for VA rating purposes. 2. During the course of the entire period on appeal, the Veteran has manifested painful motion of the left shoulder and, at worst, range of motion limited to midway between the side and shoulder of his minor shoulder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to an initial rating of 20 percent disabled, but no higher, for a left shoulder disorder prior to May 23, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. 3. The criteria for entitlement to an initial rating in excess of 20 percent disabled from May 23, 2016, to December 8, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from May 2007 to September 2007, and served on active duty from October 2008 to October 2009. In March 2019, the Board remanded the claim for entitlement to service connection for bilateral hearing loss for further adjudication. In a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for left ear hearing loss. That decision constitutes a full grant of the benefit sought on appeal regarding the left ear. Entitlement to service connection for right ear hearing loss is addressed in the decision below. In March 2019, the Board determined that entitlement to a 20 percent rating for the left shoulder disorder since December 9, 2018, was warranted. That decision is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. The Board remanded entitlement to a rating in excess of 10 percent prior to December 9, 2018, for further adjudication. In a September 2020 decision, the AOJ granted entitlement to a rating of 20 percent disabled since May 23, 2016, based on a change to VA policy requiring the minimal compensable evaluation under the relevant DC be assigned when painful motion is demonstrated under 38 C.F.R. § 4.59. Therefore, the issue currently on appeal is entitlement to a rating in excess of 10 percent prior to May 23, 2016, and entitlement to a rating in excess of 20 percent from May 23, 2016, to December 8, 2018. 1. Entitlement to service connection for right ear hearing loss Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 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; or when speech recognition scores utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Normal puretone thresholds during service do not necessarily preclude service connection. See 38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Whenever 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 Veteran. 38 U.S.C. § 5107(b). The Veteran underwent a December 2009 VA audiological examination. During that examination, the right ear manifested puretone thresholds, in decibels, of 15 at 500 Hertz, 15 at 1000 Hertz, 10 at 2000 Hertz, 15 at 3000 Hertz, and 15 at 4000 Hertz. Maryland CNC speech recognition score was 98 percent in the right ear. December 2014 VA treatment records contain an audiological examination in which the right ear manifested puretone thresholds, in decibels, of 15 at 500 Hertz, 10 at 1000 Hertz, 5 at 2000 Hertz, 5 at 3000 Hertz, and 20 at 4000 Hertz. The Veteran also underwent a July 2020 VA audiological examination. During that examination, the right ear manifested puretone thresholds, in decibels, of 15 at 500 Hertz, 10 at 1000 Hertz, 5 at 2000 Hertz, 20 at 3000 Hertz, and 35 at 4000 Hertz. Maryland CNC speech recognition score was 96 percent in the right ear. Under 38 C.F.R. § 3.385, the audiological examinations of record do not reflect right earing hearing loss for VA rating purposes. The Veteran is competent to described decreased hearing acuity, but his testimony is not competent to establish the extent of hearing loss to the point of meeting VA’s criteria for hearing loss disability in terms of either specific decibel loss in audiometric testing or speech discrimination by word list testing. Therefore, entitlement to service connection for right ear hearing loss is not warranted. 2. Entitlement to an initial rating in excess of 10 percent for a left shoulder disorder prior to May 23, 2016, and in excess of 20 percent disabled from May 23, 2016, to December 8, 2018 The Veteran is currently rated as ten percent disabled under DC 5201 for a left shoulder disorder prior to May 23, 2016, and 20 percent disabled thereafter. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. 29 Vet. App. 26 (2017). The Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Disabilities of the shoulder and arm are rated under DCs 5200 through 5203. The Federal Circuit has held that the plain language of 38 C.F.R. § 4.71(a) confirms that a veteran is only entitled to a single disability rating under DC 5201 for each arm that suffers from limited motion at the shoulder joint. The diagnostic code 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 (Fed. Cir. 2013). DCs 5200-5203 distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69 (2018). The Veteran is right hand dominant. See December 2018 Disability Benefits Questionnaire. Under DC 5201, a 20 percent disability rating is warranted for limitation of motion of the minor arm to shoulder level; 20 percent is also warranted for limitation of motion to midway between side and shoulder level. A 30 percent disability rating is warranted for limitation of motion of the minor arm to 25 degrees from the side. For VA purposes, shoulder forward flexion to 90 degrees is equivalent to arm flexion to shoulder level. 38 C.F.R. § 4.71, Plate 1. During a December 2009 VA examination, the Veteran reported that he had developed pain in his left shoulder after an April 2009 grenade attack on his vehicle. The Veteran further reported that he woke up frequently due to left shoulder pain. The examiner noted tenderness, weakness, and guarding of the left shoulder. Upon initial and repetitive range-of-motion testing, left shoulder flexion was measured to 100 degrees; abduction to 110 degrees; internal rotation to 50 degrees; and external rotation to 80 degrees. There was objective evidence of pain with active motion testing and repetitive motion testing. The examiner found no ankylosis of the joint. Imaging reflected mild degenerative changes. VA treatment records reflect that the Veteran reported shoulder pain. See, e.g., September 2010 and March 2011 VA Treatment Records. In an April 2011 statement, the Veteran reported that his shoulder range of motion “is definitely not up to shoulder level.” In a March 2015 statement, he reported left shoulder range of motion to “about the midway point….” At his October 2018 Board hearing, the Veteran’s testimony indicated left shoulder pain during motion. The Veteran is competent to report his left shoulder symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The medical and lay evidence of record reflects that the Veteran has experienced painful motion of the left shoulder throughout the entire course of the appeal. Additionally, based on the Veteran’s statements, his left shoulder range of motion has been limited to, at worst, midway between the side and shoulder. Therefore, the Veteran’s left shoulder disorder warrants a 20 percent rating during the entire course of the appeal. Entitlement to a rating of 20 percent disabled prior to May 23, 2016, is warranted. In the absence of evidence of right shoulder limitation of motion to 25 degrees from the side, a rating of 30 percent disabled is not warranted at any time during the course of the appeal. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of ten percent for a cervical spine disorder prior to April 24, 2018, is remanded. 2. Entitlement to an initial rating in excess of ten percent for a thoracolumbar spine disorder prior to December 9, 2018, is remanded. The Veteran is currently service connected for a cervical spine disorder rated as 10 percent disabling prior to April 24, 2018, and 60 percent disabling thereafter. His thoracolumbar spine disorder is rated as 10 percent disabling prior to December 9, 2018, and 40 percent disabling thereafter. A March 2019 Board decision granted entitlement to 60 percent for a cervical spine disorder since April 24, 2018, and entitlement to 40 percent for a thoracolumbar spine disorder since December 9, 2018. At that time, the Board remanded the cervical spine rating prior to April 24, 2018, and the thoracolumbar spine disorder prior to December 9, 2018, for further adjudication. Subsequent to the Board’s decision and remand, the Veteran submitted an April 2019 letter from a private physician from Atrius Health indicating that the Veteran’s current cervical and thoracolumbar spine condition “regressed to his present state” around June 30, 2015. The claims file does not appear to contain any other records from Atrius Health. A remand is needed to attempt to obtain any outstanding, relevant private medical records. The matters are REMANDED for the following action: 1. Obtain VA treatment records since May 2020 and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any outstanding relevant treatment records related to his cervical and thoracolumbar spine disorders, including treatment records from Dr. C.I. at Atrius Health. If the records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and his representative should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.