Citation Nr: 21075934 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-44 919 DATE: December 21, 2021 ORDER 1. A nonservice-connected pension prior to June 18, 2021 is granted. 2. Service connection for a degenerative bone disease is denied. 3. A compensable rating for hearing loss is denied. REMANDED 1. Service connection for a back disorder is remanded. 2. Service connection for a neck disorder is remanded. 3. Service connection for a right shoulder disorder is remanded. 4. Service connection for a left shoulder disorder is remanded. FINDINGS OF FACT 1. Prior to June 8, 2021, the Veteran was prevented from securing and following substantially gainful employment as a result of disability. 2. The Veteran does not have a degenerative bone disease that had its onset during service, within one year of discharge, or is causally or etiologically related to any disease, injury, or incident during service. 3. The Veteran's hearing loss has manifested by no worse than level II hearing loss in his right ear and level II hearing loss in his left ear. CONCLUSIONS OF LAW 1. Prior to June 8, 2021, the criteria for nonservice-connected pension benefits were met. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23. 2. The criteria for service connection for a degenerative bone disease are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for a compensable rating for hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to November 1976. The case comes before the Board of Veterans' Appeals (Board) from an appeal of a Department of Veterans Affairs (VA) Regional Office (RO) March 2017 and November 2017 rating decisions. In November 2019, the Board remanded the claims on appeal for additional development. The Board has limited its discussion to relevant evidence which is required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F. 3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. PENSION 1. A nonservice-connected pension prior to June 18, 2021. Legal Criteria VA nonservice-connected pension benefits are payable to a veteran who has attained the age of 65 years or is permanently and totally disabled from nonservice-connected disability or disabilities, which is not the result of willful misconduct where the veteran has the requisite active wartime service. 38 U.S.C. § 1521(a); 38 C.F.R. § 3.3. Analysis The Veteran is seeking a nonservice-connected pension prior to June 18, 2021. In an August 2017 application form, the Veteran reported receiving monthly income from the Social Security Administration (SSA) of $603.93, VA disability compensation of $133 per month, and food stamps in the amount of $105. The Veteran's service personnel records (SPRs) show that he turned 65 years old in 2020. In November 2017, the Veteran reported for an examination for this claim. The Veteran reported being right-handed and working in construction and carpentry until a few years earlier. He also reported being unable to work for more than a few hours each month due to disability. The examiner reported that the Veteran has daily pain in his right shoulder, worse with elevating it over his head. The examiner also reported that he cannot do any overhead lifting or lift more than 20 pounds. The examiner further reported that the Veteran's ability to stand is limited. The examiner concluded that the Veteran is unable to perform his normal work in the construction and carpentry fields. The Veteran's SSA records were associated with the file in February 2018. The Veteran reported working as a construction laborer after service and last working in June 2015. He also reported that he stopped working due to shoulder, back, and neck disabilities and that these conditions prevent him from reaching over his head or lifting over 20 pounds. The Board finds that the Veteran has been prevented from working due to disability during the period on appeal. The Veteran reported that he is unable to work due to shoulder, back, and neck disabilities. The evidence indicates that his work experience is limited to construction and carpentry work and that he last worked in 2015. The November 2017 VA examiner found that the Veteran's disabilities prevent him from standing for long periods, lifting over 20 pounds, and moving his right arm to over his head. The examiner also found that the Veteran is not able to perform his usual occupation in the construction and carpentry fields. Therefore, the evidence indicates that the Veteran was prevented from securing and maintaining such employment due to disability during the period on appeal. Disability pension claims are not purely medical questions. Here, the Board has considered both the relevant medical evidence as well as the non-medical evidence such as work history and lay statements. In sum, the preponderance of the evidence shows that during the period on appeal the Veteran was prevented from securing and following substantially gainful employment as a result of disability. Therefore, entitlement to nonservice-connected pension benefits prior to June 18, 2021 is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. II. SERVICE CONNECTION 1. Service connection for a degenerative bone disease. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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 or aggravated during service." Saunders v. Wilkie, 886 F. 3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Analysis The Veteran claimed service connection for a degenerative bone disease. He has not indicated a specific disease or what bones are affected. He also has not indicated how he believes this condition is related to military service. The Veteran's service treatment records (STRs) do not include reports of or treatment for a bone disease. The Veteran was treated during service for a laceration on his head after striking his head on a hatch in June 1975. The Veteran did not report this, and the treatment provider did not note any symptoms related to his bones. The treatment provider did note that the injury was unlikely to result in disability. An August 1976 separation examination was marked normal for his spine and upper and lower extremities. Nothing relevant was noted during the examination. The Veteran's post-service VA treatment records include treatment for back, neck, and bilateral shoulder conditions, but not for a generalized or systemic bone disease. The Board finds that the Veteran does not a degenerative bone disease that had its onset during service, within one year of discharge, or that is otherwise related to service. In this regard, the Veteran has not asserted, and the medical evidence does not show, that he experienced the claimed condition during service or in the years following discharge. Furthermore, there is no other evidence of record indicating the presence of a generalized or systemic bone disease or a nexus between such a disease and the Veteran's military service. To the extent that the Veteran may have back, neck, or shoulder disorders related to service, claims for service connection for disorders affecting those joints are remanded below for additional development. While the Veteran has not been afforded an examination regarding this claim, a mere conclusory claim that a condition is related to service is insufficient to require VA to provide an examination. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Therefore, the Board finds that a VA examination or opinion is not warranted for this claim. Accordingly, there is insufficient evidence to establish that the Veteran has a degenerative bone disease that had its onset during service, within one year of discharge, or is causally or etiologically related to any disease, injury, or incident during service. Therefore, as the evidence is not at least in equipoise, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). III. INCREASED RATING 1. A compensable rating for hearing loss. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. 38 C.F.R. § 4.86(a) provides that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 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). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran filed a claim seeking a compensable rating for hearing loss in March 2017. In a September 2021 correspondence, the Veteran's representative stated that the environment used for VA audiometric testing does not reflect the impact hearing impairment has in real world situations. Prior to the appeal period, the Veteran reported for a VA audiological examination in March 2015. He reported having difficulty understanding speech. The VA audiologist noted that the Veteran conveyed that hearing loss functionally impacted ordinary conditions of life to the extent that interlocutors' voices were not clear and, as such, the Veteran required frequent repetition. Martinak, 21 Vet. App. 447. The audiologist reported the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 AVG. RIGHT 40 60 65 65 57.5 LEFT 35 45 55 65 50 The average pure tone threshold was 57.5 in the right ear and 50 in the left ear. Speech discrimination testing was found to show scores of 100 percent in both the right and left ears. The results correspond to level II hearing loss in the right ear when the average threshold of 57.5 is rounded up to 58 and level I hearing loss in the left ear. 38 C.F.R. §§ 4.85, 4.86(a), DC 6100. When combined, the results reflect a noncompensable disabling evaluation for the Veteran's hearing loss. Id. The Veteran reported for a VA audiological examination regarding this claim in September 2017. The evaluating audiologist noted that the Veteran reported his hearing loss affects his ability to speak and understand speech. Martinak, 21 Vet. App. 447. The audiologist reported the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 AVG. RIGHT 40 60 55 65 55 LEFT 30 35 55 60 45 The average pure tone threshold was 55 in the right ear and 45 in the left ear. Speech discrimination revealed scores of 92 percent in the right ear and 88 percent in the left ear. The results correspond to level I hearing loss in the right ear and level II hearing loss in the left ear. Id. When combined, the results reflect a noncompensable percent disabling evaluation for the Veteran's hearing loss. Id. The evidence is summarized above. Throughout the period of consideration, the audiological findings disclose that the Veteran has not warranted Board finds a compensable rating for this disability. The severity of the Veteran's right and left ear hearing loss does not result in a compensable rating. The Board has considered the lay evidence of record. The Veteran is competent to report difficulty with his hearing speech and how it affects his speech, and the Board has considered the functional impacts that the Veteran has endorsed. However, disability ratings for hearing loss derive from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. 345. In addition, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Therefore, the functional impact that the Veteran describes is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The preponderance of the evidence shows that the Veteran's hearing loss has manifested by no worse than level II hearing loss in his right ear and level II hearing loss in his left ear. Consequently, the benefit-of-the-doubt doctrine is not for application and a compensable rating for hearing loss cannot be granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding other claims for additional evidentiary development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Service connection for a back disorder. 2. Service connection for a neck disorder. 3. Service connection for a right shoulder disorder. 4. Service connection for a left shoulder disorder. The Veteran is seeking service connection for back, neck, and bilateral shoulder disorders. In his August 2017 substantive appeal (VA Form 9), the Veteran wrote that he bumped his head on a hatch during service, which resulted in a laceration. Since this contended injury, the Veteran claims that he has experienced pain in his joints, as articulated above. In an October 2019 statement, the Veteran's representative advanced the theory that the Veteran has bilateral shoulder disorders which are secondary to back and neck disorders. The Veteran's service treatment records (STRs) do not include reports of, or treatment for back, neck, or shoulder disorders. The Veteran sought treatment during service for a laceration on his head after striking his head on a hatch in June 1975. The clinician noted that the injury was unlikely to result in disability. The Veteran did not report such and the clinician did not notate any symptoms related to the Veteran's back, neck, or shoulder joints. Upon his August 1976 separation examination, a clinician indicated normal evaluation of both the spine and the upper extremities. This examination provided no guidance as to the other claimed joint disabilities. During VA treatment in December 2010, the Veteran reported experiencing chronic neck and left shoulder pains for 6 months to one year. During VA treatment in March 2011, he reported that he fell and injured his right shoulder 6 months earlier. In September 2011, he reported experiencing intermittent back pains for two years. In November 2017, the Veteran reported for a VA shoulder conditions examination The Veteran reported that he experienced right shoulder symptoms during service but denied seeking treatment at that time. The examiner provided a diagnosis of bilateral glenohumeral joint osteoarthritis. However, the examiner did not render a nexus opinion. In January 2020, the Veteran reported for VA examinations to address all of these claims. The Veteran reported experiencing chronic back, neck, and bilateral shoulder pain since service. He also reported that the back and neck pain started when he bumped his head on a hatch during active-duty service. He further reported that he performed lifting, pushing, and carrying of heavy equipment and materials as a boatswain during service. The examiner provided diagnoses of bilateral glenohumeral and acromioclavicular degenerative joint disease, degenerative disc disease (DDD) of the thoracolumbar spine, facet arthritis of the lumbar spine, and DDD with spondylolisthesis and facet arthritis of the cervical spine. The examiner found that it is less likely than not that the claimed disabilities were incurred in or caused by an in-service injury, event, or illness. The Board finds that a remand is necessary to obtain an addendum opinion regarding the nature and etiology of the claimed back, neck, and shoulder disorders. These claims are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are outstanding private records related to the issues noted above. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. The RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain any and all outstanding VA treatment records, progress notes and associate the records with the claims file. 3. Arrange for a VA opinion with an appropriate clinician to determine the nature and etiology of the Veteran's diagnosed back disorders. The clinician must review the claims file and indicate a review in the body of the opinion. The clinician must address, with specificity, all reports of symptoms (both lay and medical). For each back disorder, state whether it is at least as likely as not that it had its onset during service, within one year of discharge, or is otherwise related to service, to include the Veteran's bumping his head on a hatch during service and performing lifting, pushing, and carrying of heavy equipment and materials. 4. Obtain an opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran's diagnosed neck disorders. The clinician must review the claims file and indicate a review in the body of the opinion. The clinician must address, with specificity, all reports of symptoms (both lay and medical). For each neck disorder, state whether it is at least as likely as not that it had its onset during service, within one year of discharge, or is otherwise related to service, to include the Veteran's bumping his head on a hatch during service and performing lifting, pushing, and carrying of heavy equipment and materials. 5. Obtain an opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran's diagnosed right and left shoulder disorders. The clinician must review the claims file and indicate a review in the body of the opinion. The clinician must address, with specificity, all reports of symptoms (both lay and medical). For each right and left shoulder disorder, state whether it is at least as likely as not that it had its onset during service, within one year of discharge, or is otherwise related to service, to include bumping his head on a hatch during service and performing lifting, pushing, and carrying of heavy equipment and materials. AND For each right and left shoulder disorder, state whether it is at least as likely as not that it is proximately caused by or aggravated beyond its natural progression by a back disorder. AND For each right and left shoulder disorder, state whether it is at least as likely as not that it is proximately caused by or aggravated beyond its natural progression by a neck disorder. (Continued on the next page) 6. The clinician must provide complete and clear rationales for all conclusions reached. The clinician should provide explanations that consider the record and pertinent medical principles. B.J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Jimerfield 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.