Citation Nr: 21070595 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 13-03 564 DATE: November 24, 2021 ORDER Entitlement to service connection for arthritis or residuals of fractured shoulder is denied. Entitlement to service connection for hearing loss is denied. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for residuals of a concussion or fracture of the skull causing mental instability with memory loss or bipolar disorder and resulting in an aneurysm is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's diagnosed bilateral shoulder arthritis began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's bilateral hearing loss pre-existed his active duty service and did not worsen during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis or residuals of fractured shoulder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to March 1979. In February 2017, he testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The claim was most recently before the Board in February 2021 when it was remanded for further development. The Board finds there has been substantial compliance with the remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Service connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). For chronic diseases listed in 38 C.F.R. § 3.309 (a), including arthritis, the linkage element of service connection also may be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, 38 C.F.R. § 3.307 (a)(3) also provides for presumptive service connection for these chronic diseases if they manifested to a degree of 10 percent or more within one year from the date of the Veteran's separation from service. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d); Cosman v. Principi, 3 Vet. App. 503 (1992). 1. Entitlement to service connection for arthritis or residuals of fractured shoulder The Veteran contends that he suffers from a bilateral shoulder disability that resulted from a July 1974 in-service altercation and subsequent hospitalization. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral shoulder degenerative arthritis, the preponderance of the evidence weighs against finding that the Veteran's diagnosed shoulder disability began during service or is otherwise related to an in-service injury, event, or disease. Turning to the evidence of record, the Veteran's service treatment records are silent with respect to any complaints, treatment or diagnoses related to his claimed shoulder disability. A July 1974 in-service treatment record shows the Veteran was involved in an "altercation" in which he sustained "several blows to the head." However the treatment records during this time period do not show any complaints or treatment for the Veteran's shoulders. An October 1978 separation examination report revealed the Veteran had a normal clinical evaluation for his upper extremities, spine and "other musculoskeletal" systems. Post-service treatment records include an August 2002 private treatment record which stated the Veteran was a heavy equipment operator and has experienced chronic left shoulder pain for 10 to 11 years. He was assessed with left shoulder pain, but the "exact nature is unknown." VA treatment records show the Veteran has complained of bilateral shoulder pain as early as September 2002, when he was assessed with severe degenerative joint disease of the bilateral shoulders. In a February 2009 statement, the Veteran stated that he suffered injuries to both shoulders when he was beaten and robbed while he was on duty. In December 2019, the Veteran underwent a VA examination where he was diagnosed with bilateral shoulder degenerative arthritis. In February 2021, the Board remanded the matter to obtain a clarifying addendum opinion on the etiology of his diagnosed shoulder disabilities. In April 2021, a VA examiner reviewed the record and concluded that it was less likely than not that diagnosed bilateral shoulder degenerative arthritis was incurred in or caused by the Veteran's claimed in-service injury in 1974. In support of this conclusion, the examiner noted that service treatment records and post-service records were silent for any diagnoses of a fractured shoulder, and they were similarly silent for any shoulder complaints. There was no documentation of the Veteran having any inability to do physical training or perform any assigned military duties due to shoulder issues. The examiner further noted that the Veteran's October 1978 separation examination was silent for any shoulder defects, and the Veteran himself signed a statement on the examination report attesting that "to the best of his knowledge and belief he had no physical defects." The VA examiner also noted that service treatment records showed the Veteran was involved in a July 1974 physical altercation, but the only discharge diagnosis was a left subcondylar fracture of the mandible. The examiner further noted that a review of post-service medical records indicate the Veteran was diagnosed with degenerative arthritis of the right and left shoulders more than 20 years following discharge from active service. The examiner further noted the August 2002 private treatment record documenting the Veteran's reports of left shoulder pain for the past 10 or 11 years, and he noted that the Veteran's lay reports would have placed the onset of his symptoms in 1991 or 1992 more than a decade following discharge from service. The examiner also noted a previous private treatment record from September 1998 which diagnosed the Veteran with advanced degenerative joint disease of the left shoulder secondary to posterior instability, and an August 1998 clinic note documented the Veteran's reports of left shoulder pain for six months. Further, the VA examiner noted that VA treatment records documented the Veteran's employment history as a heavy equipment operator from 1998 to 2002. The examiner stated that the time period for the Veteran's job occurred during his previously reported onset of left shoulder pain and within one year the right shoulder diagnosis was made. The Board finds that entitlement to service connection for arthritis or residuals of fractured shoulder is not warranted. The Board acknowledges that the Veteran is currently diagnosed with bilateral shoulder degenerative arthritis which he contests is related to a July 1974 in-service altercation. However, service treatment records do not reveal any complaint, diagnosis, or treatment for any shoulder problems. In addition, post-service medical records do not reveal complaints related to the Veteran's shoulders until years after discharge from service. The April 2021 VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, there is no medical opinion supportive of the Veteran's claim which contradicts the April 2021 VA examiner's unfavorable opinion. The only other evidence supporting the Veteran's contention that his diagnosed shoulder disabilities were the result of active duty service comes from his own lay statements. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the question of etiology here extends beyond an immediately observable cause-and-effect relationship and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Based on the totality of the record, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for arthritis or residuals of fractured shoulder. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and this claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for hearing loss is remanded. The Veteran testified at his Board hearing that he developed hearing loss as a result of his July 1974 in-service assault. He has also attributed his hearing loss to acoustic trauma from artillery shelling. See December 2008 VA Form 21-526. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and evidence shows he was exposed to acoustic trauma during active service, the Veteran's hearing loss pre-existed his active duty service and did not worsen during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. Pure tone thresholds above 20 decibels indicate some hearing loss, irrespective of whether it is severe enough to qualify as a disability for VA compensation purposes. See Hensley, 5 Vet. App. at 157. Claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." Crowe v. Brown, 7 Vet. App. 238, 245 (1994). If evidence is submitted sufficient to demonstrate that a veteran's disorder pre-existed service, and underwent an increase in severity during service, it is presumed that the disorder was aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is specific evidence that the increase in disability is due to the natural progress of the disease. Id. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during and after service. 38 C.F.R. § 3.306 (b). Evidence and Analysis The Veteran's DD-214 shows that his military occupational specialty (MOS) was as a motor transport operator. He also received training in the usage of hand grenades for which he received an expert citation. The Board finds no reason to doubt the Veteran's description of in-service noise exposure and the description is generally consistent with the known circumstances of his military service. Exposure to acoustic trauma in service is conceded. Turning to the evidence of record, the Veteran's October 1973 Report of Medical Examination at service entrance revealed audiometric results as follows: October 1973 HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 -- 45 LEFT 0 0 5 -- 45 A review of the Veteran's service treatment records showed no complaints or treatment related to his hearing. His October 1978 Report of Medical Examination prior to service separation revealed audiometric results as follows: October 1978 HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 -- 40 LEFT 10 5 5 -- 40 In December 2019, the Veteran underwent a VA examination where he was diagnosed with bilateral hearing loss. The Board remanded the matter in February 2021 because the December 2019 VA examiner's opinion started with the premise that the Veteran had a hearing loss that existed before service but used the wrong standard in assessing whether there was aggravation of his hearing loss. Since the October 1973 entrance examination report includes audiometric findings but does not include any specific defect or diagnosis noted on the examination report, the Veteran was presumed sound at entrance with respect to his hearing. See McKinney v. McDonald, 28 Vet. App. 15, 25 (2016). In March 2021, a VA examiner reviewed the record and concluded that the Veteran's bilateral hearing loss clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. In support of this conclusion, the examiner noted that the Veteran's service entrance examination indicated normal hearing between 500 and 2000 Hertz, and hearing loss at 4000 Hertz with a threshold of 45 decibels for each ear. The separation examination indicated normal hearing between 500 and 2000 Hertz, and hearing loss at 4000 Hertz with a threshold of 40 decibels for each ear. Further, the examiner noted that these findings show objective evidence of no permanent auditory damage on active duty from conceded noise exposure. The examiner noted that there was no report of complaints or treatment for hearing problems in the Veteran's service treatment records or at separation from active duty. Further, the examiner found there was no significant shift in hearing between entrance and separation from service at 4000 Hertz or any other tested frequency. The Board finds the March 2021 VA medical examiner's opinion is entitled to great probative weight. The opinion was rendered following examination of the Veteran and a complete review of his claims file. The opinion considered the Veteran's reports of noise exposure during military service and provided an adequate rationale for the conclusion that was based on the record and the examination findings. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). The examiner specifically noted that there was no evidence of a significant threshold shift from induction to discharge. This is an appropriate, and adequate, rationale for the examiner's opinion. Cf. Hensley, 5 Vet. App. at 159. The Veteran has submitted no competent medical evidence contrary to the medical opinion cited above, despite being provided ample opportunity to do so. See 38 U.S.C. § 5107 (a). Accordingly, the Board finds that the evidence is insufficient to show that the Veteran's bilateral hearing loss underwent an increase in disability during his active duty service. Aggravation may therefore not be conceded, and the claim must be denied. See 38 C.F.R. § 3.306 (b). The only other evidence supporting the Veteran's contention that his bilateral hearing loss was the result of in-service noise exposure comes from his own lay statements. As a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide the etiology opinion under the facts of this case. The onset and etiology of his hearing loss are complex questions, and the Veteran has not been shown to possess the medical training and expertise required to provide such an opinion. Jandreau, 429 F.3d at 1372; Kahana, 24 Vet. App. at 428. Based on the totality of the record, the Board concludes that the preponderance of the evidence is against the Veteran's claim seeking service connection for bilateral hearing loss. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C.A §5107. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C is remanded. The Veteran contends that he contracted hepatitis C from air gun injections he received during active duty service. He also stated that he shared razors during service with other service members, which is another risk factor for the contraction of hepatitis C. In February 2021, the Board remanded this issue to obtain a new VA examiner's opinion that specifically addressed the Veteran's contentions. Unfortunately, the March 2021 VA examiner's negative nexus opinion is inadequate. The examiner concluded that the Veteran "had known stronger risk factors for transmission of Hepatitis C" but failed to specifically explain which risk factors were stronger than the Veteran's reports of receiving air gun injections or sharing razors in service and how the examiner arrived at this conclusion. Remand is therefore needed to obtain a more thoroughly reasoned addendum opinion. 2. Entitlement to service connection for residuals of a concussion or fracture of the skull causing mental instability with memory loss or bipolar disorder and resulting in an aneurysm is remanded. 3. Entitlement to service connection for headaches is remanded. 4. Entitlement to service connection for an acquired psychiatric condition is remanded. In February 2021, the Board remanded the issues to obtain a clarifying opinion addressing whether the Veteran's diagnosed mild cognitive impairment noted in a December 2019 VA examination report was related to the Veteran's claimed disability. The remand directives also specifically asked the examiner to identify all diagnoses related to the Veteran's claimed residuals of a concussion or fracture of the skull, and also to opine on whether the Veteran's headaches either had their onset in or are otherwise related to active duty service. Remand is needed to afford the Veteran a new VA examination with clarifying opinions because the April 2021 VA examiner failed to fully address the questions presented in the prior Board remand. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician, preferably a VA hepatologist or infectious disease specialist, regarding whether the Veteran's hepatitis C is at least as likely as not related to risk factors for contraction of the disease during active duty service. The examiner is asked to specifically consider and comment on the significance of the Veteran's reports of being injected with an air gun during service, as well as sharing razors with other service members. A complete rationale should be provided for all opinions and conclusions expressed. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of any diagnoses related to the Veteran's claimed residuals of a concussion or fracture of the skull, headaches and acquired psychiatric condition. Following review of the record, the clinician should answer the following questions: (a.) Identify all diagnoses related to the Veteran's claimed residuals of a concussion or fracture of the skull. (b.) Is it at least as likely as not that any diagnoses identified in (a) either had their onset or are otherwise related to the Veteran's active duty service? (c.) Is it at least as likely as not that the Veteran's diagnosed mild cognitive impairment either had its onset in or is otherwise related to active duty service? (d.) Is it at least as likely as not that the Veteran's headaches either had their onset in or are otherwise related to active duty service? A complete rationale must be provided for all opinions. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.