Citation Nr: 21069135 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-50 370 DATE: November 17, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Service connection for a right shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran had active duty from May 1983 to April 1986 and from April 1986 to May 2007. 2. The adequate audiological evaluations for rating purposes show a non-compensable level of hearing loss bilaterally. 3. A current right shoulder disorder, diagnosed as osteoarthritis and right shoulder strain, was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service; a current right shoulder disorder is not causally or etiologically related to service, and was not proximately due to or aggravated beyond its natural course by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100 (2021). 2. A chronic right shoulder disorder is not proximately due to, aggravated by, or the result of a service-connected disability; it is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These appeals return to the Board following a November 2018 remand for new examinations. The Regional Office (RO) substantially complied with the November 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating for Hearing Loss Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation using Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Turning to the medical evidence, in an August 2014 VA examination, the Veteran reported no functional impairment from his hearing loss. The pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 60 60 LEFT 20 20 20 55 55 The average pure tone threshold was 39 in the right ear, and 38 in the left ear. Speech recognition ability could not be calculated because the VA examiner found that there was poor reliability due to rhyming errors. The examiner noted that 92 percent was calculated during a July 2014 VA audiological evaluation, although it was not specifically stated whether the Maryland CNC list was used in this determination. The examiner assessed that this would be a fair estimation of the Veteran's speech recognition during the examination. Using the 92 percent, the right and left ears both correspond to Roman numeral I on Table VI of 38 C.F.R. § 4.85, which would result in a noncompensable rating under Table VII. If Table VIA was utilized, absent the speech recognition scores, Roman numeral I would still be assigned to each ear resulting in a noncompensable rating under Table VII. In a December 2012 VA examination, the Veteran reported difficulty in everyday conversations in both quiet and noisy backgrounds, and that he had to ask people to repeat themselves or to face him to understand what they were saying. He also had to turn the television up louder. The pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 70 65 LEFT 25 25 35 65 70 The average pure tone threshold was 49 in the right ear, and 49 in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. This corresponds to Roman numeral I in both ears, and a noncompensable rating. Next, in January 2020, a VA examiner found that the audiological evaluation was invalid, because the results were not reliable and thus not suitable for rating purposes. The examiner noted that despite repeated attempts and reinstruction, the test results were not reliable and not reported. The examiner related that the test results were strongly suggestive of a non-organic hearing loss/hearing loss component. There was variability in responses to pure-tones of up to 25 dB with retest, "1/2 spondee" responses were noted and SRTs were in poor agreement with PTAs (SRTs were significantly better than expected given pure-tone results), some air and bone conduction thresholds were in poor agreement, the very poor speech recognition scores obtained were inconsistent with observed communication abilities, and pure-tone and speech results were inconsistent with prior VA test. Therefore, this evidence cannot be considered. A review of the Veteran's remaining VA and private records fails to show any qualifying audiograms for rating purposes. The July 2014 VA audiological evaluation showed some speech recognition scores, as stated above, but not a corresponding audiogram from which to assess severity of hearing loss. Further, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this regard, the examiner specifically asked the Veteran to describe the functional impact of his hearing loss, as shown above. In addition, the file contains his own written statements and sworn testimony regarding hearing loss. Therefore, the Board finds that no prejudice to the Veteran in that the functional effects of his hearing loss disability were adequately addressed by the examiner and are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). The Board has considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's bilateral hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners had the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Service Connection for Right Shoulder Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. The Veteran claims he has a chronic right shoulder disorder that alternatively was caused by or started in service or is proximately due to or aggravated by active duty. As such, service connection will be analyzed under direct, secondary, and presumptive theories of entitlement. Turning to the evidence, the first element of direct service connection, a current disability, is met as a January 2020 VA examiner diagnosed a right rotator cuff tear and right acromioclavicular joint osteoarthritis. Further, an April 2021 VA examiner diagnosed bilateral shoulder strain, from 2007 and 2021, and bilateral arthralgia of the shoulders. As such, the first element of service connection is met. As to an in-service incurrence, a review of the service treatment records (STRs) fails to show any diagnosis of, treatment for, or complaints of a right shoulder disorder. There are frequent complaints of left shoulder pain and injury in service, but not pertaining to the right shoulder. The Veteran related to a May 2021 VA examiner that he experienced right shoulder pain in service from carrying heavy objects up and down ladders, although he was never treated. However, he had the opportunity to report left shoulder pain, and it was recorded multiple times, and at no point did he mention right shoulder pain. Therefore, his statements are assigned less probative weight as they are inconsistent with the contemporaneous medical records. As such, the second element is not met. As to a medical nexus, no competent medical professional has provided a well-reasoned opinion connecting the current right shoulder disorder to any event during service. In October 2016, a private, treating psychiatric professional submitted a letter in which it was stated that the Veteran's "shoulder was injured during military service." This document does not clearly state which shoulder this refers to, although STRs show only a left shoulder injury, and additionally does not include a rationale as to a current right shoulder injury and service. In contrast, a January 2020 VA examiner, after a medical record and literature review, found it was less likely than not that a right shoulder disorder was caused service because the STRs were silent for a right shoulder condition, to include an April 2007 separation examination that was also silent for any mention of right shoulder complaints. Further, a July 2021 VA addendum opinion (amending an April 2021 direct opinion) specifically referenced that the Veteran's right shoulder abnormalities from a 2015 MRI but found that these were not due to service. The examiner highlighted that there were no reports of right shoulder pain during a November 2008 VA shoulder examination, and medical records in July 2007, November 2008, and February 2012 all reported chronic left shoulder pain but no right shoulder abnormalities or pain. As such, the examiner concluded that it was less likely than not caused by service. There is no contradictory medical opinion. As such, the medical evidence does not support service connection on a direct basis. Next, in the alternative, the Veteran has also claimed that his right shoulder disorder was caused by his service-connected disabilities. The first element a current disability is met as stated above. The second element a service-connected disability is also met, as he is service connected for left shoulder tendinitis, degenerative changes of the lumbar spine, and a left knee strain and arthritis. As to a medical nexus between a service connection disability and a right shoulder disorder, a January 2020 VA examiner found it was less likely not that his right shoulder disability was proximately due to or aggravated by a service-connected disability, because osteoarthritis was a "wear and tear" disease, describing the deterioration of the joint and listing risk factors of age, gender, obesity, joint injuries to the joint in question, repeated stress on joints, and certain metabolic diseases. The examiner concluded that given the risk factors for the Veteran's current disabilities, that his right shoulder disability was not proximately due to or aggravated by service-connected lumbar spine disability. Further, an April 2021 VA examiner found that the Veteran's right shoulder disorder was not proximately due to his service-connected lumbar spine disability because there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5 centimeter so that the individuals gait pattern became altered to the extent that clinically there was an obvious Trendelenburg gait. The examiner continued that this level of severity was not supported based on record review, history, or exam. Further, the examiner stated it is not unusual for two joints to share properties in the same person, but one joint's disease does not "spread" to another or cause damage to it. Therefore, the right shoulder was less likely than not related to a service-connected disability. As to aggravation, the April 2021 VA examiner stated there was no medical literature or evidence to support that a lumbar spine disability would contribute to right shoulder pain causing the disability. The Veteran has claimed in an August 2021 correspondence that his back disability and inability to use his left side caused his right shoulder disability, but there is no medical evidence that supports this theory. As such, given the two competent and well-reasoned VA opinions, the third element is not met, and the medical evidence does not support service connection on a secondary. Next, the January 2020 VA examiner diagnosed the Veteran with osteoarthritis, which is a chronic disease under 38 C.F.R. § 3.309. However, the examiner did not identify X-ray evidence showing osteoarthritis, or specify what radiographic results were relied upon in making the assessment, which is required for the diagnosis under the law. Further, a July 2014 VA X-ray revealed no arthritis of the right shoulder, with an impression of a normal study. Regardless of whether the diagnosis of osteoarthritis is confirmed, no chronic disease right shoulder osteoarthritis was diagnosed during service, and a review of his VA and private medical records fail to show that a chronic disease, to include osteoarthritis, was diagnosed in the year following separation from service. Additionally, the Veteran did not report symptoms of right shoulder pain in his separation evaluation, nor for years after separation from service. In a December 2008 VA examination, he complained of pain in his left shoulder for the past two years. Between his separation until 2012, VA medical records show frequent complaints of joint pain to include left shoulder pain but did not mention any right shoulder pain or symptoms. Although he has stated that he had right shoulder pain since service, the contemporaneous medical records showing no right shoulder pain symptomatology is more compelling and as such, continuity of symptomatology is not shown. The Board finds that the current lay assertions made for VA compensation purposes are given less probative weight because they are contradicted and outweighed by the more contemporaneous lay and medical evidence, including the Veteran's own statements made seeking medical care. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). Here, the Board is not only relying on the absence of evidence, but also on the contemporaneous medical records that specifically show that the Veteran repeatedly denied right shoulder symptoms in the years following separation from service. To the extent that he asserts that he has a chronic right shoulder disorder related to service or service-connected disability, the Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). The Veteran's lack of report of right shoulder symptoms for several years after service while receiving treatment for, to include a VA examination, for left shoulder symptoms, lessens the probative value of his current assertions. Thus, his statements of constant right shoulder pain beginning in service are not competent or credible lay evidence of the existence of a chronic right shoulder disorder. Based on the above, the medical evidence does not support the appeal. Further, the Board has considered the Veteran's lay statements that that his disorder was caused by service or proximately due to or aggravated by a service-connected disability. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan Evans, 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.