Citation Nr: 21011909 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 20-28 280 DATE: March 3, 2021 ORDER The claim to reopen service connection for a left shoulder disability is granted. The claim to reopen service connection for bilateral hearing loss is granted. The claim to reopen service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for an acquired psychiatric disability is granted. A higher initial rating for service-connected back scar is dismissed. REMANDED Service connection for a shoulder disability is remanded. FINDINGS OF FACT 1. Evidence received since the prior final April 2008 denial of service connection for left shoulder disability (based on a lack of chronic disability or in-service injury) includes updated treatment records clearly documenting left shoulder pain and hydroxyapatite deposition disease as well as an October 2018 VA examination report diagnosing bilateral rotator cuff tears. The Veteran has also since submitted allegations relating his shoulder issues to repeated heavy lifting and strain in the course of dispatching his duties in service. Such evidence is clearly new, relates to previously unestablished elements of service connection, and reasonably raises the possibility of substantiating the underlying claim. 2. Evidence received since the prior final April 2008 denial of service connection for bilateral hearing loss (based on a lack of chronic hearing loss or a relationship to service) includes treatment records documenting treatment for hearing loss and a July 2018 VA examination report showing a hearing loss disability based on speech discrimination scores. Such evidence is clearly new, relates to previously unestablished elements of service connection, and reasonably raises the possibility of substantiating the underlying claim. 3. Evidence received since the prior final April 2008 denial of service connection for tinnitus (based on a lack of chronic tinnitus or in-service injury or events) includes updated treatment records showing bilateral tinnitus that the Veteran continues to allege began during service. Such evidence is clearly new, relates to previously unestablished elements of service connection, and reasonably raises the possibility of substantiating the underlying claim. 4. The July 2018 VA examination report shows valid bilateral speech discrimination scores under 94 percent, which qualifies as a hearing loss disability under 38 C.F.R. § 3.385. The examiner also specifically diagnosed sensorineural hearing loss. 5. The Veteran has presented competent and credible lay evidence that observable hearing impairment began during active duty. Although a July 2018 VA opinion found his hearing loss is unrelated to service, the Board affords it little probative weight here for failure to properly consider the Veteran’s lay assertions and because the examiner did not properly explain their rationale for finding that documented hearing impairment in audiograms during service were not indicative of military acoustic trauma. 6. Consequently, the Board finds the evidence at least in relative equipoise as to whether his sensorineural hearing loss (as an organic disease of the nervous system) is presumptively related to service. 7. The Veteran is competent to self-diagnose tinnitus. 8. He has also presented competent and credible lay evidence that he first developed “persistent ringing of the ears” during active duty. 9. The negative July 2018 VA opinion of record is inadequate because the examiner failed to consider the Veteran’s lay statements. Thus, the Board finds the evidence is at least in relative equipoise as to whether tinnitus (as an organic disease of the nervous system) is presumptively related to service. 10. VA treatment records and a September 2018 VA examination report show multiple psychiatric diagnoses (including depression and anxiety). 11. The Veteran alleges his psychiatric condition is related his service aboard a submarine and being forced to live in narrow, closed quarters. He specifically notes that the conditions were so oppressive for him that he asked off the submarine after one month of service. May 1968 service treatment records (STRs) confirm that the Veteran was treated for “mild anxiety reaction” and, at the time, complained of feeling nervous and dizzy, not being able to sleep, and, most notably, that he did not like being on a submarine and felt sea sick. The provider at the time also specifically indicated they would recommend allowing him to be disqualified for such service or be deemed unadaptable “if he really wants off.” Personnel records confirm he was transferred off that submarine in June 1968. 12. The only pertinent medical opinions of record are a positive September 2018 VA opinion (which notes the Veteran’s reports that “overwhelming anxiety” began aboard a submarine before being transferred off after one month” and that intermittent anxiety continued over the years) and a negative October 2018 VA opinion (which relies largely on an erroneous finding that there was no documented psychiatric treatment in service). Consequently, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s current psychiatric disability, partly manifested as anxiety, is related to military service. 13. At no point has the Veteran filed a notice of disagreement (NOD) appealing the initial rating assigned for his service-connected back scar, yet the issue was included in the March 2020 statement of the case (SOC) for no perceivable reason. Absent a NOD initiating an appeal of that issue, the Board has no jurisdiction over it, and it must be dismissed. CONCLUSIONS OF LAW 1. The criteria for reopening service connection for a left shoulder disability are met. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). 2. The criteria for reopening service connection for bilateral hearing loss are met. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). 3. The criteria for reopening service connection for tinnitus are met. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). 4. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309 (2020). 5. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309 (2020). 6. The criteria for service connection for an acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b) (2020). 7. There are no questions of fact or law to be decided regarding entitlement to service connection for sleep disturbances because the Board does not have jurisdiction of this claim. 38 U.S.C. §§ 7104, 7105 (2018); 38 C.F.R. §§ 19.21, 20.201 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1966 to September 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision appealed in a timely June 2019 notice of disagreement (NOD) and perfected by a timely June 2020 substantive appeal (which the Veteran requested an extension for due to the COVID-19 pandemic) in response to March 2020 statement of the case (SOC). The Board also notes that the June 2019 NOD also appeals “Service Connection” for “LOWER BACK PAIN” and seeks a 20 percent rating. However, the November 2018 rating decision on appeal did not mention a back disability at all, and only addresses a back scar disability. The Board has considered whether the June 2019 NOD could effectively appeal the initial rating assigned with a September 2018 award of service connection for lumbosacral spine strain with degenerative arthritis warranting corrective action to issue a responsive SOC per 38 C.F.R. § 19.24. However, the initial rating assigned is precisely the 20 percent the June 2019 sought. Moreover, every piece of supporting argument related to the lower back is directed entirely at service connection elements (i.e., addressing the etiology of the disability, in-service injuries, etc.) and never mentions its rating or current severity. Even the Veteran’s December 2020 appellate brief frames the issue as service connection for intervertebral disc syndrome (IVDS) only advances arguments as to why service connection for a back disability should be granted in the first place. Notably, the low back disability itself is currently being rated under Diagnostic Code 5243 (for IVDS). For the reasons outlined above, the Board reopens service connection for left shoulder disability, tinnitus, and bilateral hearing loss and grants service connection for tinnitus, bilateral hearing loss, and acquired psychiatric disabilities, obviating any need for further detailed discussion thereof at this time. With respect to the dismissed back scar rating appeal, the Board first notes that the March 2020 SOC included a rating appeal for service-connected back scar, and the Veteran did properly perfect that appeal in his substantive appeal. The November 2018 rating decision did also award service connection for a back scar and assign a noncompensable rating, but the June 2019 NOD does not appeal that rating. In fact, there is no indication that the Veteran intended to appeal that rating and has never provided any argument or correspondence suggesting otherwise. Absent a valid NOD or other appropriate filing, the Board has no jurisdiction over that claim and it must therefore be dismissed. See 38 C.F.R. §§ 19.20, 19.21 (providing that appellate jurisdiction over an appeal requires the filing of a NOD pursuant to §§ 19.21 and 19.52). REASONS FOR REMAND 1. Service connection for a shoulder disability is remanded. The October 2018 VA examination is inadequate because it diagnosed only bilateral rotator cuff tears, does not address the relevant notations of other shoulder pathology in the record (e.g., left shoulder hydroxyapatite deposition disease), and did not consider the Veteran’s own allegations regarding strain to the shoulders from heavy lifting during service in the included ultimate medical opinion. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an in-person or telehealth (whichever is appropriate) examination by an orthopedist or other appropriate clinician to determine the nature and cause of any shoulder disability. Based on a review of the record, examination of the Veteran (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS), and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all shoulder disability entities found. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. (b.) For each disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include the aggregate effect of physical strains or wear and tear in the course of performing his military duties, which the Veteran competently alleges involved repeated heavy lifting. (CONTINUED ON NEXT PAGE)   All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay processing of the claim and require further clarification. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.