Citation Nr: 21004606 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-30 236 DATE: January 27, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right shoulder rotator cuff tear status post repair is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current left ear hearing loss disability had its onset during active duty as a result of in-service noise exposure. 2. The Veteran’s right shoulder rotator cuff tear status post repair is not due to or a result of his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss is met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385. 2. The criteria for service connection for right shoulder rotator cuff tear status post repair are not met. 38 U.S.C. §§ 1101, 1131, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from June 1983 to March 1987. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which denied service connection for the claims decided herein. The Veteran filed a timely notice of disagreement (NOD) and substantive appeal. In March 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In August 2019, the Board remanded these claims for further development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In other words, “[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 1. Entitlement to service connection for left ear hearing loss For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. The Veteran contends that his current left ear hearing disability is a result of his noise exposure in service. Military personnel records reflect that prior to military service, the Veteran underwent a bilateral myringotomy and tubes due to bilateral serous otitis media with hearing loss. Service treatment records (STRs) reflect that the June 1983 entrance report of medical examination does not reflect hearing loss in the left ear. The examiner noted that the Veteran had surgery to put tubes in the middle ear at the age of 11. In August 1983, the Veteran complained of hearing loss following trauma. An audiological examination revealed left ear hearing within normal limits. A January 1985 treatment note reflects that the Veteran had a mild high frequency hearing loss. Hearing conservation data reflects audiological testing showing hearing within normal limits for the left ear in February 1984 and January 1985. However, there was a “poor” threshold shift from February 1984 and January 1985. The Veteran elected not to have a separation examination. Military personnel records reflect that the Veteran’s military occupational specialty was tactical communication system operations-mechanic. In service noise exposure has been conceded. Post-service, in an October 2013 statement, the Veteran claimed hearing loss due to trauma that occurred on August 12, 1983. He reported that on January 23, 1985, he was diagnosed with high frequency hearing loss. A February 2014 VA audiological examination report reflects that the audiologist noted that frequencies could not be tested because there was non-organic hearing loss. He reported that behavioral testing was not consistent with objective test results. He reported that the Veteran was either unable or unwilling to give correct behavioral test results on that date. The audiologist reported that the test results of the pure tone tests were invalid. He stated that otoacoustic emission results were consistent with normal hearing within the normal range in both ears from 1500 Hz to 3000 Hz. Pure tone test results were primarily in the severe range today in stark contrast to conversational speech and other test results obtained today. The positive Stenger test indicated deception in pure tone findings. The audiologist reported that the use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etcetera, that make combined use of pure tone average and word recognition scores inappropriate. The audiologist found that the left ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. As rationale, he said that the Veteran had normal hearing in the left ear when tested in February 2012 at the Charlotte VAMC. He stated that hearing loss was not caused by or a result of military noise exposure. A November 2014 progress note from a private audiologist reflects that pure tone testing indicated a mild and mild to moderate sensorineural hearing loss for the right and left ears. Speech discrimination ability was excellent bilaterally. A November 2014 “physician’s statement” from S.H. indicates that the Veteran had received treatment “at our facility” and was diagnosed with asymmetrical hearing loss and tinnitus. Attached to the statement is an August 1983 screening note of acute medical care, also signed by R.H., showing treatment for ear pain/drainage, tinnitus and hearing problem due to trauma. On the accompanying physician statement, R.H. indicated, “One cannot say exactly how long this condition existed prior to the date of diagnosis or definitively state its cause.” The statement further notes, “However, it is as likely as not that [the Veteran’s] exposure to gunfire, mortars, and heavy equipment during his active duty military service contribute to or cause the claimed condition.” A February 2015 VA examination report reflects that the Veteran had sensorineural hearing loss; however, it was not at the level that is considered to be a disability for VA purposes under 38 C.F.R. § 3.385. During the March 2019 Board hearing, the Veteran testified that in August 1983, he reported tinnitus and hearing problems due to trauma following a field exercise with grenades and gunfire. The Veteran reported hearing problems ever since 1987. A September 2019 VA examination report reflects that the audiologist noted that test results are not valid for rating purposes (not indicative of organic hearing loss). The audiologist explained that testing was accomplished following much re-instruction. She stated that behavioral responses were often inconsistent, however, the Veteran appeared to be sincere in his efforts. She noted that the speech reception thresholds of 45 dB and 35 dB for the right and left ears respectively show poor agreement with pure tone averages. The possibility of non-organic component to an unknown degree cannot be ruled out. She reported that responses to pure-tones were inconsistent with previously documented results. The speech recognition score for the left ear was 90 percent. Notably, the audiologist noted that use of word recognition score is appropriate for the Veteran. The Veteran was diagnosed with sensorial hearing loss. The audiologist found that there was no permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for the left ear. She concluded that she cannot determine a medical opinion regarding the etiology of the Veteran’s left ear hearing loss without resorting to speculation due to the variation of test results. A May 2020 addendum opinion reflects that the audiologist noted that inconsistencies in examinations are due to invalid test results. She reported that the February 2014 and September 2019 audio examinations were both reported by the examiners to be invalid for rating, most likely due to non-organic component. She reported that the February 2015 is felt to be valid and is consistent with objective test results. She also noted that the February 2014 private examination in 2014 is also felt to be valid and is not out of possible agreement with the examination of February 2015. She noted that the February 2012 examination is felt to be accurate although it appears ears may be reversed but is consistent with other test results that are thought to be valid. She stated that inconsistencies in the opinions from 2014 private opinion and the 2015 opinion are due to the private opinion based on noise exposure and test results only with no review of STRs which is required. She reported that it is impossible to determine if auditory damage occurred on active duty or onset of hearing loss in service without review of the STRs. The audiologist went on to report that the 2015 VA examination shows no related hearing loss in 2015 in the left ear and borderline relatable in 2014 in the left ear. She stated that a valid examination with no non-organic components would need to be performed and valid consistent responses obtained to determine if there currently is a relatable loss in either ear. She opined that it is less likely as not that the Veteran’s hearing loss, if found, began during active service, manifested within one year, or is related to an in-service injury to include the conceded noise exposure. As rationale, she reported that STRs indicate normal hearing at entrance and separation with no significant permanent shift in hearing thresholds greater than normal measurement variability. She reported that there is no evidence of permanent auditory damage on active duty. She reported that there is no record or complaint or treatment for claimed condition in the STRs. She reported that there is no evidence of chronicity or continuity of care since military separation. She reported that although there is excessive noise exposure, auditory damage and hearing loss is not conceded from noise exposure alone. She reported that there is objective evidence against a nexus in this case. Upon review of the evidence of record, the Board finds that service connection for left ear hearing loss is warranted. As an initial matter, the Board notes that his military personnel records reflect that prior to enlistment, in 1975, the Veteran underwent a bilateral myringotomy and tubes due to bilateral serous otitis media with hearing loss. As indicated above, unless a disorder is noted at entry into service, a veteran is presumed sound in this regard unless there is clear and unmistakable evidence that shows the disorder preexisted service and was not aggravated thereby. 38 U.S.C. § 1111. Here, no bilateral hearing loss disability was noted on the entrance examination. The examiner only noted that the Veteran had this surgery as a child, but there was no hearing loss noted at entrance or any notation that a hearing disability existed before entrance. The Veteran is thus presumed to have been sound as to his hearing at the time of entry into service. Moreover, the evidence does not clearly and unmistakably show either preexistence or lack of aggravation. Following the January 1975 operative report, there are no medical records indicating that the Veteran continued to have an unresolved hearing problem. Moreover, the Veteran underwent an audiogram showing hearing within normal limits of the left ear. There is no indication that the Veteran had a hearing disability prior to service that was not specifically due to and limited to bilateral serous otitis media which the Veteran underwent an operation to resolve. The presumption of soundness has therefore not been rebutted. The Board finds that the Veteran has a current disability of left hearing loss. The February 2014 private audiologist noted mild to moderate sensorineural hearing loss in the left ear. Additionally, the September 2019 VA audiologist noted a speech recognition score of 90 percent for the left ear and stated that use of word recognition score is appropriate for the Veteran. Additionally, STRs reflect consistent noise exposure and the RO has conceded in-service noise exposure. Thus, the dispositive issue is whether there is a nexus between the two. The 2014, 2015, and 2020 VA audiologists all conceded the Veteran’s in-service noise exposure, and found the Veteran’s history remarkable for military related noise exposure, however, all provided a negative nexus opinion largely based on the lack of in-service notation of a left ear hearing loss disability and a possible nonorganic component of hearing loss. However, the audiologists failed to address the specific finding of mild high frequency hearing loss in January 1985 and how it might relate to the Veteran’s current hearing loss. Additionally, STRs reflect that the Veteran did complain of hearing loss and there were poor threshold shifts on audiometric testing. The opinions are flawed because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The 2014 opinion from the private audiologist acknowledged that he could not exactly say how long this condition existed prior to the date of diagnosis or definitively state its cause. However, he opined that it is as likely as not that the Veteran’s in-service noise exposure during his military service contributed to or caused the claimed condition. While the medical opinion relied, in part, on the service history provided by the Veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Here, the Board has found the veteran’s statements to be credible and the record supports the fact that the Veteran had in-service noise exposure. Given the adequate positive medical nexus opinion and competent, credible lay evidence of current left ear hearing loss that had its onset in service, the evidence is at least evenly balanced as to whether the Veteran’s left ear hearing loss is related to his in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left ear hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for status post right shoulder rotator cuff tear The Veteran contends that service connection for his right shoulder rotator cuff tear status post repair is warranted as due to his active military service; specifically, his involvement in the boxing team. STRs do not reflect diagnosis, treatment, or symptoms of a right shoulder disability. Military personnel records reflect that he was on the D Battery boxing team in 1983. Post-service, in an October 2013 statement, the Veteran reported that he first experienced issues with his rotator while boxing in November 1983. He reported that his condition has worsened during his military career and resulted in having a rotator cuff surgery in 1991. He reported that he still has limited range of motion. During the March 2019 Board hearing, the Veteran testified that he was on a boxing team and was subsequently diagnosed with rotator cuff injury in 1991 after a couple of fights. The Veteran reported that he continued to have problems with his shoulder since boxing in service. The Veteran reported that he currently has limited range of motion in his shoulder. A September 2019 VA examination report reflects that the Veteran has a diagnosis of right shoulder rotator cuff tear status post repair. The Veteran reported that he was on the battery boxing team in service. He reported that he boxed for a total of about six months. He was on the boxing team early in his military duty in 1983. He reported that he injured his right shoulder on his second match when he threw a punch. He reported that he felt a pull, but continued in the boxing match and did not seek medical care at that time. He also stated that he did not go for medical care for his right shoulder for the remaining time that he was in the military. After he got out of the military, he was a mail sorter for the United States Postal Service since 1988. He said that his shoulder bothered him, but he did not go to a doctor until he got insurance a few years later. He reported that he first saw a doctor in 1992 and radiology revealed a rotator cuff tear. Subsequently, he had a rotator cuff repair. The clinician opined that the Veteran’s right shoulder rotator cuff tear status post repair in 1992 is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, she reported that service records reflect that the Veteran was on the boxing team while in the military. The Veteran admitted that he did not seek any medical care after he reported feeling a “pull” in his right shoulder in 1983. She noted that the STRs do not document any visits to medical providers for his entire duty period for a right shoulder condition although his claimed injury was in 1983. She reported that it is expected that if the Veteran had significant injury and pain in the right shoulder in 1983, he would report to medical providers at some time in the remaining approximately four years of his duty. She reported that there is not one STR that documents a complaint or treatment for a right shoulder problem during his duty period. She noted that he was seen several times with complaints of low back pain. She also noted that a period physical examination from September 1985 reflects that examination of his upper extremities was normal. She reported that this was about two years after his claimed injury to his right shoulder. She reported that in conclusion, there is no medical evidence documenting any injury to his right shoulder while he was in the military. She reported that he then has no documentation in the proximate, post military discharge period of a right shoulder problem. She stated that he first saw a physician about his right shoulder in 1992, about five years after his military discharge period. She stated that there is no medical evidence to conclude that his right shoulder rotator cuff tear and repair in 1992 is related or attributable to his military duty period. VA treatment records were reviewed in connection with this appeal. Upon review of the evidence of record, the Board finds that service connection for a right shoulder disability is not warranted. Initially, the Veteran has a current diagnosis as reflected in his 2019 VA examination report. Thus, the question remains as to whether his right shoulder disability is related to his in-service boxing. Based on a review of the available records, her particular expertise, and medical literature, the clinician found that the Veteran’s right shoulder disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the clinician noted the Veteran’s statements regarding his in-service boxing and provided an adequate rationale for her conclusion that the Veteran’s disability was not due to service. Notably, the clinician noted that the Veteran complained in service of his other disabilities and never mentioned his right shoulder. Additionally, the examiner noted that the Veteran continued in the service for almost four years with no complaint of a shoulder disability following the reported “pull” he felt. Moreover, the examiner reasoned that if the Veteran’s pain that he felt in service was a rotator cuff tear, or some other serious injury, then it would be expected that he would have sought treatment long before he did. As a medical professional, this opinion is entitled to greater weight than the Veteran’s own belief, no matter how sincere, that his current disability is related to the reported incident in service. As the examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the Veteran, including through his representative, has opined that his right shoulder disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s contentions as to the etiology of his shoulder disability relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). Thus, while the Veteran is competent to report should pain since service, his statements as to causation of his current disability are not competent. To the extent that these lay statements are credible, they do not provide a competent opinion as to causation in this case as a cause and effect opinion in this case is not capable of lay observation. Accordingly, the Veteran’s statements as to causation are outweighed by the specific, reasoned opinion of the VA examiner which is accorded greater probative weight than the Veteran’s more general beliefs as to the likely etiology of a current right shoulder disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim of service connection for right shoulder rotator cuff tear status post repair. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.