Citation Nr: 21074001 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 19-16 948 DATE: December 13, 2021 REMANDED The appeal regarding entitlement to service connection for a right shoulder disability is remanded. The appeal regarding entitlement to a compensable evaluation for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from April 2004 to October 2008. His primary specialty was infantryman, and he was awarded the Combat Infantry Badge and the Parachutist Badge. This matter comes before the Board of Veterans' Appeals (Board) from a December 2018 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in May 2020. A transcript is of record. Service connection for a right shoulder disability The Veteran asserts that he has a right shoulder disability that is related to service, to include incidents during combat. During his May 2020 hearing, he testified that he experienced pain and stiffness of the right shoulder. He indicated that he had fallen on his right side during parachute landings and that he had carried heavy gear during service. He also described an incident when he exited a Humvee and struck the door with his right side. He noted that his right shoulder took impact from firing his M4 during training and in combat. The record does not contain a diagnosis regarding the Veteran's right shoulder. In Saunders v. Wilkie, the Federal Circuit held that pain alone could constitute a disability if it causes functional impairment. 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit further explained that to establish a disability, "the [V]eteran will need to show that his pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. Considering his reports of incidents during service as well as current symptoms, the Board concludes that an examination is necessary to determine the nature and etiology of any right shoulder disability, to include disabling functional impairment as contemplated in Saunders. The Board additionally notes that the Veteran had service in Iraq from January 2007 to March 2008. Service connection may be warranted for a Persian Gulf War Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2026. 38 C.F.R. § 3.317(a). In claims based on qualifying chronic disability, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Disabilities that have existed for 6 months or more and those disabilities that exhibit intermittent episodes of improvement and worsening over a 6 month period will be considered chronic under the regulation. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). A MUCMI is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317(a)(2)(ii). It means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. A chronic multisymptom illness will not be considered medically unexplained when both the etiology and the pathophysiology of the illness is partially understood. 38 C.F.R. § 3.317 (a)(2)(ii). The determination of whether the illness is medically unexplained is particular to the individual Veteran in each case. See Stewart v. Wilkie, 30 Vet. App. 383, 391 (2018). The VA examination conducted on remand must also address whether the Veteran's claimed right shoulder disability is a qualifying chronic disability as contemplated by § 3.317. Evaluation of bilateral hearing loss The Veteran's hearing loss is currently evaluated as noncompensably disabling. He was most recently examined by VA in November 2018. During his May 2020 hearing, he indicated his belief that the 2018 examination was not thorough, and requested a current examination. The Board concludes that an examination is warranted to determine the current severity of the Veteran's bilateral hearing loss. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine whether he has a right shoulder disability, to include any functional limitation due to reported pain and stiffness, and the etiology of any identified condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should indicate whether the Veteran has a right shoulder disability, to include whether he has functional limitation due to right shoulder pain and stiffness. For all identified right shoulder disabilities, the examiner should respond to the following inquiries: A. As to any diagnosed right shoulder disability, is the etiology OR pathophysiology of the condition not understood AT ALL regarding this particular Veteran? B. As to any diagnosed right shoulder disability, if BOTH the etiology AND pathophysiology of the condition is understood AT ALL as to this particular Veteran, is it at least as likely as not that the condition is attributable to service? The examiner is directed to the May 2020 hearing testimony regarding parachute jumps, impact on the right shoulder caused by firing a weapon, the Veteran striking his right side exiting a Humvee, and the carrying of heavy gear during service that reportedly affected the Veteran's right shoulder. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for a VA audiological examination to determine the current severity of his service-connected bilateral hearing loss. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. All pertinent symptomatology and findings referable to the Veteran's bilateral hearing loss should be reported in detail. 3. Then, readjudicate the Veteran's claims. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.