Citation Nr: 21006679 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-25 752 DATE: February 4, 2021 ORDER Entitlement to service connection for a right ear hearing loss disability is granted. REMANDED Entitlement to service connection for carpal tunnel syndrome of the right wrist is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, and to include as secondary to the service-connected disabilities, is remanded. Entitlement to service connection for a stroke, to include as secondary to the service-connected disabilities, is remanded. Entitlement to a temporary total evaluation because of treatment for a service-connected disability requiring convalescence is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his right ear hearing loss disability is at least as likely as not related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for a right ear hearing loss disability are 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 Army from July 1978 to August 1982. He had additional reserve service in the United States Army Reserve. His periods of active service in the United States Army Reserve were from March 29, 2008, to April 25, 2008, December 1, 2009, and from June 5, 2010 to June 18, 2010. These matters are on appeal from an August 2010 rating decision. In December 2016, the Veteran testified before the undersigned and a transcript of the proceeding is associated with the record. In December 2017, the Board of Veterans’ Appeals (Board) remanded the issues on appeal for additional evidentiary development. Since the December 2017 remand, the issue of service connection for hypertensive heart disease with supraventricular arrhythmia (claimed as a heart condition) has been granted by the Agency of Original Jurisdiction. This is a complete grant of the benefit sought and the issue is no longer before the Board. 1. Entitlement to service connection for a right ear hearing loss disability. The Veteran contends that his right ear hearing loss disability is related to his in-service noise exposure. The Board notes that the Veteran has been awarded service connection for a left ear hearing loss disability and tinnitus. The Board concludes that the Veteran has a current right hearing loss disability that is related to his in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. In July 2010, the Veteran was afforded a VA examination. There were no auditory thresholds above 25 decibels and his speech recognition score were 100 percent for the right ear. The VA examiner provided a negative nexus opinion based on the absence of a right ear hearing loss disability. The Veteran underwent a private audiology examination in August 2018. The Veteran had a Maryland CNC speech recognition score of 90 percent. Dr. K.Y. noted that the Veteran was service connected for tinnitus and explained that the Veteran’s DD 214 Form confirmed that he worked as a light wheel vehicle and power generator mechanic. She conceded the Veteran’s in-service noise exposure. The Veteran was diagnosed with mild sensorineural sloping hearing loss of the right ear. Dr. K.Y. opined that it was at least as likely as not that the Veteran’s hearing loss was related to military noise exposure. Her rationale was that the Veteran’s military occupational specialties indicated that it was highly probable that he was exposed to loud levels of noise. In September 2019, the Veteran was afforded a VA hearing loss examination. There was one auditory threshold above 25 decibels and his speech recognition score was 100 percent for the right ear. The VA examiner provided a negative nexus opinion based on the absence of a right ear hearing loss disability. The VA examiner provided a negative opinion based upon a lack of a significant threshold shift in the right ear from 2000 to 2002. Upon a review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran has a current right ear disability that was caused by his in-service noise exposure. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right ear hearing loss disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for carpal tunnel syndrome of the right wrist is remanded. The Veteran contends that he has a right wrist disability that is related to repetitive use as a mechanic during his active service. The Veteran’s VA treatment records include complaints of right wrist pain, probable degenerative joint disease, tendinitis, and right wrist sprain. In September 2019, the Veteran underwent a VA wrist examination. The Veteran did not meet the criteria for a diagnosis of right wrist carpal tunnel syndrome. However, the VA examiner noted right wrist pain that caused pain with limitations. The Veteran wore a right wrist splint. The VA examiner provided a negative nexus based upon a lack of diagnosis for right carpal tunnel syndrome. In Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pain alone can be a functional impairment and therefore qualify as a disability for the purpose of establishing service connection. Specifically, the Federal Circuit expressed that “disability” as employed in 38 U.S.C. §§ 1110, [1131], “refers to the functional impairment of earning capacity, not the underlying cause of said disability”; thus, pain can function as a “disability” without any current underlying condition, as pain itself diminishes the body’s ability to function. Nonetheless, the Federal Circuit explained that to establish the presence of a disability based on subjective pain, a veteran “will need to show that his or her pain reaches a level of a functional impairment of earning capacity”. Based upon the forgoing, a remand is required to obtain an addendum opinion to address the Veteran’s right wrist pain and his other right wrist diagnoses of record. 2. Entitlement to service connection for a right shoulder disability is remanded. The Veteran testified that during military drills, the seatbelt in his Humvee broke and he fell out of the vehicle and landed on his right shoulder. He contends that this in-service injury has caused his current right shoulder disabilities. A Statement of Medical Examination and Duty Status indicates that the Veteran fell from a Humvee in April 2008. The Veteran endorsed shoulder pain later in the evening. The injury was incurred in the line of duty while the Veteran was on active duty. In August 2009, the Veteran explained that his right shoulder injury was disregarded because the pain medicine that he was given effectively treated his pain and that he was sent to the hospital to be evaluated for a heart attack. His blood pressure and chest pain received priority over his right shoulder injury. Physical Profiles prepared in October 2009 and October 2010 note right rotator cuff syndrome and right shoulder surgery. In December 2009, the Veteran sought treatment at a VA Medical Center for right shoulder pain. The Veteran indicated that the pain began during service after his Humvee accident. The Veteran was diagnosed with mild degenerative joint disease of the acromioclavicular joint with impingement of the right shoulder. Pursuant to the Board’s December 2017 remand directives, the Veteran was afforded a VA shoulder examination in September 2019. The VA examiner diagnosed right rotator cuff tendonitis and right rotator cuff tear. Diagnostic testing also showed degenerative arthritis of the right shoulder. The VA examiner opined that the Veteran’s right shoulder disabilities were less likely than not incurred in or caused by the in-service injury event or illness. He explained that the Veteran’s Humvee accident occurred after active service and that there was no other documentation of in-service right shoulder trauma. The Board finds that opinion is inadequate because the Veteran’s military personnel records show he had a Humvee accident during a period of reserve service that constitutes active service for VA purposes. The evidence of record clearly demonstrates that the Veteran had an in-service Humvee accident. Therefore, a remand is required to obtain an adequate VA medical opinion. 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression, and to include as secondary to the service-connected disabilities, is remanded. In May 2010, the Veteran wrote that his depression was caused by headaches, not being able to deploy with his fellow service members, and by the impotence caused by his blood pressure medication. Due to the Veteran’s recent award of service connection for hypertensive heart disease with supraventricular arrhythmia, the Board finds that this statement raises the theory of entitlement to service connection on a secondary basis. An October 2010 Physical Profile indicates that the Veteran had depression and anger issues. These conditions were considered permanent. The Veteran was unable to carry and fire his individually assigned weapon and was unable to live in austere environment without worsening the medical condition. In October 2019, the Veteran was afforded a VA examination. The VA examiner diagnosed posttraumatic stress disorder (PTSD) and unspecified depressive disorder. In January 2020, VA obtained an addendum medical opinion. The examiner provided a negative nexus opinion, but only provided a rationale for the PTSD. This opinion is inadequate with regard to the Veteran’s diagnosis of unspecified depressive disorder. Based upon the forgoing, a remand is required to obtain an adequate VA medical opinion that addresses direct and secondary service connection. 4. Entitlement to service connection for a stroke, to include as secondary to the service-connected disabilities, is remanded. In May 2010, the Veteran wrote that his blood pressure and stress caused his stroke. In September 2019, the Veteran underwent a VA examination to determine the etiology of his stroke. The VA examiner provided a negative nexus opinion. However, he only considered the Veteran’s first period of active service and did not consider the Veteran’s periods of active service in the United States Army Reserve. Therefore, the medical opinion is inadequate. The same VA examiner also provided a positive opinion for hypertensive heart disease with supraventricular arrhythmia, and indicated that in 2008 the Veteran was treated on an in-patient basis for elevated blood pressure, progressive fatigue, and chest pain syndrome. The Veteran’s VA treatment records document that he has undergone three transient ischemic attacks (TIAs). As noted above, the Veteran is now service-connected for hypertensive heart disease with supraventricular arrhythmia. A remand is required to obtain an adequate medical opinion that addresses the etiology of the Veteran’s TIAs under theories of direct service connection and secondary service connection. 5. Entitlement to a temporary total evaluation because of treatment for a service-connected disability requiring convalescence is remanded. The Veteran seeks a temporary total evaluation due to a service-connected disability requiring convalescence. Thus, a decision on the remanded issues could significantly impact a decision on this issue, and the issues are inextricably intertwined. A remand of the temporary total evaluation claim is required. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right wrist disabilities are at least as likely as not related to his in-service repetitive use as a mechanic or his fall from a Humvee in April 2008. The Board notes that evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right rotator cuff tendonitis, right rotator cuff tear, and degenerative arthritis of the right shoulder are at least as likely as not related to his in-service Humvee accident. In rendering the opinion, the VA examiner is asked to address the December 2009 VA orthopedic treatment notes and the Physical Profiles prepared in October 2009 and October 2010. The Veteran is competent to report ongoing shoulder pain since his in-service accident. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s unspecified depressive disorder is at least as likely as not related to his in-service complaints for depression and anger issues. The VA is also asked to opine as to whether the Veteran’s unspecified depressive disorder is at least as likely as not proximately due to or aggravated beyond its natural progression by the functional impairment caused by his service-connected disabilities, including any side effects from the medications he takes to treat such disabilities. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s strokes are at least as likely as not related to his 2008 in-service treatment for elevated blood pressure, progressive fatigue, and chest pain syndrome. The VA is also asked to opine as to whether the Veteran’s strokes are at least as likely as not proximately due to or aggravated beyond their natural progression by service-connected hypertensive heart disease with supraventricular arrhythmia. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a temporary total evaluation because of treatment for a service-connected disability requiring convalescence. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.