Citation Nr: 21067100 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-28 688 DATE: November 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left shoulder disorder, diagnosed as degenerative arthritis, to include as secondary to lumbar strain disability is remanded. FINDING OF FACT The Veteran does not have a current hearing loss disability in either ear for VA benefits purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1993 to December 1997. These matters come before the Board of Veterans' Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified regarding these matters at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the electronic file. Subsequently, in March 2021, these matters were remanded by the Board for new VA examinations. The Board notes that while the Veteran's service connection claim for a right shoulder disorder, which was one of his appealed claims, was granted by the RO in a May 2021 rating decision, his service connection claims for a left shoulder disorder and bilateral hearing loss remain respectively denied; thus, they have now been returned to the Board for readjudication Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss as an organic disease of the nervous system, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). For conditions noted during service (or in the presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). Id. In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss, as an organic disease of the nervous system, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). 1. Entitlement to service connection for bilateral hearing loss For the reasons discussed below, the Board finds that a current hearing loss disability is not established; consequently, the criteria for service connection are not satisfied. For VA compensation purposes, hearing loss is defined as a disability when the auditory pure tone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory pure tone 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 using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. VA audiological examinations were performed in June 2014 and April 2021. Both reports show that the Veteran did not have pure tone thresholds of 40 decibels or higher at 500, 1000, 2000, 3000, or 4000 Hertz, or of 26 decibels or higher at three or more of these frequencies. In addition, they show that his speech discrimination scores based on the Maryland CNC test were 100 percent for the right ear and 98 percent for the left ear (June 2014) and 96 percent for both the right and left ears (April 2021). Accordingly, the examination reports of record unfortunately show that the Veteran does not have a hearing loss disability, as defined in § 3.385, in either ear. Hensley 5 Vet. App. at 159. The Board notes that the Veteran's audiological records reflect an April 2013 provisional hearing loss diagnosis, a June 2013 report noting that his hearing was within normal limits at each ear, and a September 9, 2014 diagnosis of "borderline normal to mild loss sensorineural hearing loss," followed by a hearing aid consultation. However, none of these evaluations include corresponding reports of auditory pure tone thresholds of 40 decibels or higher at 500, 1000, 2000, 3000, or 4000 Hertz, or of 26 decibels or higher at three or more of these frequencies and Maryland CNC test, which is required for a VA hearing loss diagnosis, pursuant to 38 C.F.R. § 3.385. As such, notwithstanding the Veteran's credible testimony during his February 2021 virtual Board hearing that he believes that his hearing loss has gotten worse since his initial VA examination in 2014, the record does not otherwise show that the Veteran has had a hearing loss disability, as defined under § 3.385, during the pendency of this claim. The record also does not otherwise show that the Veteran has had a hearing loss disability, as defined under § 3.385, during the pendency of this claim, including at the time of filing. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of a current hearing loss disability, service connection cannot be awarded. See 38 C.F.R. § 3.385; Holton, 557 F.3d at 1366; see also Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes). Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, the Veteran's claim for service connection for bilateral hearing loss must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disorder, diagnosed as degenerative arthritis, to include as secondary to lumbar strain disability is remanded. The basis for the Board's prior March 2021 remand was that the findings of May 2014 Shoulder and Arms Condition VA examination was inadequate to adjudicate the Veteran's claims because the examination did not include a nexus opinion evaluating a direct service connection, which was the primary basis of the Veteran' bilateral shoulder disability claim. Barr vs. Nicholson, 21 Vet. App. 303 (2007). Subsequently, the Veteran was afforded a new Shoulder and Arms Condition VA examination in May 2021. However, the Board unfortunately also finds this examination inadequate with regard to the Veteran's left shoulder disorder, for the reasons discussed below. First, the May 2021 VA examiner determined that the Veteran does not have a current left shoulder disability, citing to a corresponding May 2021 x-ray, but failed to reconcile that conclusion with the prior VA June 2014 left shoulder diagnosis of degenerative arthritis, which was also based on diagnostic test findings. Since arthritis is a chronic disability and progressive in nature, it could not just resolve itself; as such, one of these two diagnoses (degenerative arthritis vs no current arthritic diagnosis) must be inaccurate, and has to be reconciled by an examiner before this matter can be adjudicated on its merits. In addition, in a requested clarifying opinion (provided in August 2021), another examiner noted that the Veteran has a current left shoulder strain but cites to a lack of sufficient evidence during service to support a finding of a left shoulder strain during service, and that the first noted documented left shoulder symptoms post service was in 2015, which was 18 years after the Veteran's military separation. However, a negative nexus for a subsequent left shoulder strain diagnosis still does explain the discrepancy between a diagnosis of degenerative arthritis in May 2014 and a lack of any diagnosis of arthritis in May 2021. Further, notwithstanding the May 2021 VA examiner's finding of a lack of a current left shoulder arthritis disability, in light of the Court's decision in Saunders, the Board finds that another remand is also necessary for further evidentiary development of the Veteran's appeal. The Court has held that pain in the absence of a presently diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a VA examiner with the appropriate medical expertise to determine the nature and etiology of the Veteran's claimed left shoulder disability. The record and a copy of this Remand must be made available and reviewed by the examiner. The need for another examination of the Veteran is left to the discretion of the examiner selected to provide the opinion. After a review of the record, the examiner should provide responses to the following: Confirm whether the Veteran has a current diagnosis of a left shoulder disability, including degenerative arthritis and strain, or, if not, whether the Veteran's reported symptoms of chronic progressive pain result in functional impairment as a Forklift Operator (or in any other occupational capacity) that impacts the Veteran's earning capacity. (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed left shoulder disability, including degenerative arthritis and strain or left shoulder pain symptoms that cause functional impairment in his earning capacity, originated during, or is etiologically related to, the Veteran's active duty service. (b) With respect to a secondary service connection, provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that any diagnosed left shoulder disability, including degenerative arthritis and strain or left shoulder pain symptoms that cause functional impairment in his earning capacity, resulted from, or was aggravated (beyond its natural progression) by the Veteran's service-connected lumbar strain disability. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. The examiner should note that in granting service connection for his right shoulder, the RO has conceded that such is related to the Veteran's military duties as Aircraft Maintenance Ground Safety Mechanic and/or his in-service motor vehicle accident in March/April 1996. The Veteran also testified during his February 2021 Board hearing that his bilateral shoulder disability stem from the same circumstances. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability, as contrasted to a temporary worsening of symptoms. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. The Agency of Jurisdiction (AOJ) should ensure compliance of the foregoing and any other necessary development, and then readjudicate the Veteran's left shoulder disability claim. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.