Citation Nr: 21062745 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-47 164 DATE: October 12, 2021 ORDER Entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for a back disability is granted. Entitlement to a compensable disability rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left shoulder disability is at least likely as not related to service. 2. Resolving reasonable doubt in the Veteran's favor, his back disability is at least likely as not related to service. 3. For the entire period on appeal, the Veteran's right ear hearing loss has had a Numeric Designation of no greater than II as per Table VI of the VA schedule of ratings; the Veteran's left ear hearing loss has had a Numeric Designation of no greater than IV as per Table VI of the VA schedule of ratings. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.1, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1969 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter in January 2019. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the preponderance of the evidence is against the claim, the claim must be denied. Id. 1. Entitlement to service connection for a left shoulder disability First, the Board notes that in a November 2019 VA examination, the Veteran was diagnosed with rotator cuff tendonitis of the left shoulder. Therefore, the first element of service connection is met. See Shedden, supra. Second, the Veteran contends that his left shoulder disability was caused while he served aboard the U.S.S. Holland AS-32. He stated that while checking cylinder liners on top of the engine, he slipped and fell and landed on the deck plates. He stated that he could barely move and that his left shoulder hit a twelve-inch valve wheel on the deck. He endorsed left shoulder pain and stated that he was given pain killers and discharged. The Veteran further contended that he experienced a wrist laceration during this event, as well, which was documented in his service treatment records. See Sept. 2010 STR Medical, p. 27. The service treatment record confirmed that the laceration occurred on board the U.S.S. Holland AS-32 in April 1980. The Board notes that the Veteran is competent to describe symptoms and events observable to his senses. See Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has no reason to discredit the Veteran's statements regarding the events and finds convincing the in-service record indicating that he did experience an event causing injury while serving aboard the U.S.S. Holland AS-32. Therefore, resolving all doubt in favor of the Veteran, the Board finds that the second element of service connection is met. See Shedden, supra. Regarding the third element of service connection, nexus, the evidence conflicts. In October 2019, the Veteran underwent a VA shoulder and arm conditions examination in which he was diagnosed with bilateral acromioclavicular joint osteoarthritis and tendinitis/bursitis of the left shoulder. However, the examiner opined that it was less likely than not that the Veteran's left shoulder disability was related to his service. The examiner stated that the Veteran's treatment records, along with other evidence of record, do not support the Veteran's contention that his left shoulder disability is due to his fall in April 1980. In November 2019, a VA examiner diagnosed the Veteran with rotator cuff tendonitis of the left shoulder and issued another negative nexus opinion, stating that the Veteran indicated that his fall in 1980 only resulted in injury to his right hand. In September 2020, the Veteran submitted a private medical opinion by T.G., a nurse practitioner. T.G. noted that he reviewed VA and private medical records in the claims file, as well as service treatment records. T.G. opined that the Veteran's left shoulder tendonitis is at least likely as not directly related to his military service. The provider explained that chronic rotator cuff tendinopathy can be caused by multiple mechanisms, including trauma that can further degenerate the joint's bursa, cause bone spurs, and further cause bone complications. T.G. further noted that once the rotator cuff is weakened, age-related collagen fiber changes will further exacerbate the condition. T.G. found that the Veteran experienced such an event. T.G. also cited to medical literature in support of his opinion. A physician, Z.F., reviewed T.G.'s report and agreed with the opinion and rationale provided. The Board finds that the evidence as to nexus is at least in equipoise. The Board assigns little probative value to the October 2019 examination. While the examiner did outline the history of the Veteran's symptoms and complaints of left shoulder issues, the negative nexus opinion did not identify a specific rationale to support the conclusion. Additionally, the November 2019 rationale was conclusory and contradicts with the Veteran's contentions regarding onset of his left shoulder condition after his in-service injury aboard the U.S.S. Holland AS-32. However, the Board does assign significant probative value to the September 2020 medical opinion by T.G. and Dr. Z.F. The opinion reflects a thorough understanding of the Veteran's contentions regarding onset of a left shoulder disability after the in-service incident discussed above. Further, T.G. provided an opinion with a comprehensive rationale that explained how a shoulder condition can be caused by trauma. As the evidence regarding nexus is at least in equipoise, the Board finds that the third element of service connection is met. See Shedden, supra. Accordingly, service connection for a left shoulder disability is warranted. 2. Entitlement to service connection for a back disability First, in a November 2019 VA back conditions examination, the examiner diagnosed the Veteran with degenerative disc disease (DDD). Therefore, the first element of service connection is met. See Shedden, supra. Second, the Veteran contends that his back disability was caused while he served aboard the U.S.S. Holland AS-32. Specifically, he notes that the incident discussed above in which he fell and landed on deck plates also caused his back disability. As discussed above, the Veteran is competent to describe events and symptoms observable to his senses. See Jandreau, supra. Further, the Board has no reason to discredit the Veteran's statements as they relate to his claimed back disability. Therefore, the second element of service connection is met. See Shedden, supra. Regarding the third element of service connection, nexus, the evidence conflicts. In October 2019, the Veteran underwent a VA back conditions examination in which he was diagnosed with degenerative arthritis of the spine, intervertebral disc syndrome, and degenerative disc disease with radicular pain. However, the examiner opined that it was less likely than not that the conditions were due to the Veteran's active service. The examiner stated that the Veteran's treatment records, along with other evidence of record, do not support the Veteran's contention that his left shoulder disability is due to his fall in April 1980. In November 2019 the Veteran underwent another VA back conditions examination in which he was diagnosed with degenerative disc disease. The examiner issued another negative nexus opinion, stating that the Veteran indicated that his fall in 1980 only resulted in injury to his right hand. In September 2020, the Veteran submitted another medical opinion by T.G. regarding his back disability. T.G. opined that it is at least likely as not that the Veteran's DDD is directly related to his military service. T.G. stated that trauma, as the Veteran has claimed here, provides the foundation for disc dysfunction and pain. Further, T.G. stated that the Veteran's trauma, along with physically demanding and heavy load-bearing responsibilities while serving aboard the U.S.S. Holland greatly increased his risk of DDD. T.G. also cited research regarding DDD and its relation to serving in an active component of armed forces. Dr. Z.F. also reviewed this report and agreed with T.G.'s medical opinion and rationale. The Board finds that the evidence as to nexus is at least in equipoise. As with the issue discussed above, the Board assigns little probative value both the October 2019 and November 2019 VA opinions, as the examiners provided identical inadequate rationale for both claims. The Board again assigns significant probative value to the September 2020 medical opinion by T.G. and Dr. Z.F regarding the Veteran's back condition. The opinion reflects a thorough understanding of the Veteran's contentions regarding onset of the disability after the in-service incident discussed above. Further, T.G. provided an opinion with a comprehensive rationale that explained how DDD can be caused by such trauma. As the evidence regarding nexus is at least in equipoise, the Board finds that the third element of service connection is met. See Shedden, supra. Accordingly, service connection for a back disability is warranted. 3. Entitlement to a compensable disability rating for bilateral hearing loss Hearing impairment is evaluated pursuant to 38 C.F.R. § 4.85, DC 6100. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.86. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). This appeal dates back to the Veteran's original claim in December 2015 and the disability has been assigned a noncompensable rating since August 2010. In consideration of the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to a compensable rating for his bilateral hearing loss for the entire period on appeal. The Veteran appeared for a VA hearing loss examination in February 2016. Puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 Right 35 35 25 30 35 Left 50 55 50 50 55 The puretone threshold average was 31.25 decibels in the right ear and 52.50 in the left ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 88 percent in the right ear and 84 percent in the left ear. Under Table VI of 38 C.F.R. § 4.85, both ears correspond to a Roman numeral II. A noncompensable rating is warranted under DC 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. The Veteran appeared for another VA hearing loss examination in October 2019. Puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 Right 25 25 30 40 40 Left 20 30 40 55 70 The puretone threshold average was 33.75 decibels in the right ear and 48.75 decibels in the left ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 88 percent in the right ear and 70 percent in the left ear. Under Table VI of 38 C.F.R. § 4.85, the right ear corresponds to a Roman numeral II and the left ear corresponds to a Roman numeral IV. A noncompensable rating is warranted under DC 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. The Veteran appeared for another VA hearing loss examination in September 2020. However, the examiner was unable to obtain reliable puretone thresholds after multiple attempts. The examiner advised the Veteran multiple times of the inability to obtain such results. The examiner noted that threshold results continued to be out of compliance, with SRT response differing up to 25 decibels between responses obtained in separate trials. Therefore, without puretone threshold values, the Board is unable to assign any probative value to the September 2020 VA hearing loss examination. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, the audiological reports do not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86(a), (b). The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of decreased hearing acuity. The Veteran is competent to report difficulty with his hearing; however, as noted above, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, supra. (Continued on the next page) The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The preponderance of the evidence demonstrates that the Veteran's bilateral hearing loss does not meet the criteria for a compensable rating under DC 6100, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. §3.102. Accordingly, an increased rating is not warranted at this time. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.