Citation Nr: 21012057 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-42 826 DATE: March 3, 2021 REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a right-hand disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, as secondary to service-connected left hand/arm disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1969 to February 1971. 1. Entitlement to service connection for a left shoulder disability is remanded. 2. Entitlement to service connection for a back disability is remanded. With regards to both the Veteran’s clams for back and left shoulder disabilities, the Board finds that while the medical evidence does not reveal an actual diagnosis for either claimed condition, other than pain, such does not preclude service connection. Specifically, the Board notes that while pain alone does not constitute a disability for VA compensation purpose, the U.S. Court of Appeals for the Federal Circuit has ruled that pain that results in a functional impairment of earning capacity is a disability and should not be summarily discounted in a situation where there is no other disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In light of Saunders, the Board finds that there is sufficient evidence with regard to both the Veteran’s claimed back and left shoulder disorders to establish a current disability. Here, with regards to both claimed disabilities, the evidence of record, both lay and medical, reveal some functional loss due to pain, to include limitation to range of motion for the back, noted on VA treatment records, and increased pain and weakness regarding the Veteran’s left arm/shoulder. With specific regard to the Veteran’s left shoulder claim, the Board notes that in evaluating the Veteran’s left-hand disability, medical records refer to pain and weakness of the left “arm” in the vast majority of instances. To this end, in affording the Veteran the benefit of the doubt, the Board will view such reference to left “arm” also including elements of the Veteran’s shoulder. Consequently, as some functional loss has been demonstrated, the Board finds that current disabilities have been established. In light of such, the Board finds that the VA has not afforded the Veteran a VA examination to assess the nature and etiology of his claimed back and left shoulder disabilities. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claims. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.15 (c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision still triggers the duty to assist if it indicates that the Veteran’s condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has claimed that such disabilities are related to his service, and alternatively, secondary to his service-connected disabilities. Therefore, as the evidence does demonstrate current diagnoses for the claimed disabilities related to his back and left shoulder, the VA’s duty to afford the Veteran a VA examination to assess the nature and etiology of such conditions are triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for hearing loss is remanded. 4. Entitlement to service connection for tinnitus is remanded. With regards to the claim for service connection for a bilateral hearing loss, the Board finds that the most recently obtained VA examination and nexus opinion in September 2013, to be inadequate. The Board notes that the VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Here, more than seven and a half years have passed, and the Board finds that such examination, which found that the Veteran’s hearing loss did not reach the objective criteria to qualify as a disability for VA purposes, to no longer represent the present severity of the Veteran’s hearing loss disability. The Board finds that, as establishing a current disability, and in turn service connection, for hearing loss is dependent on the severity of the Veteran’s hearing acuity, an accurate and contemporaneous evaluation of the severity of such is requisite. As the last objective test of the Veteran’s hearing was more than seven years ago, the Board must find that such evaluation has become stale and another exam is required to assess the nature and etiology of this claimed condition. Because a decision on the remanded issues related to hearing loss could significantly impact a decision on the issue of service connection for tinnitus, as these conditions are normally interlinked, the issues are inextricably intertwined. The Board finds that it would be potentially prejudicial to the Veteran for the Board to consider the derivative, potentially secondary, claims prior to the determination of the claims for service connection for hearing loss. Bernard v. Brown, 4 Vet. App. 384 (1993). Consequently, these claims must be considered inextricably intertwined, and must be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991).] 5. Entitlement to service connection for a right-hand disability is remanded. 6. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, as secondary to service-connected left hand/arm disability is remanded. With regards to the Veteran’s claim for service connection for a right-hand disability and an acquired psychiatric disability. The Board finds that both the VA examinations afforded to the Veteran for these to claimed disabilities in October 2013 and October 2020 to be inadequate. Specifically, in both examinations, while the examiner spoke to direct service connection, and secondary causation, the ultimate opinion in both examination reports were silent on secondary aggravation. The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As these rationales fails to explicitly speak to aggravation, the Board finds such renders these opinions to be inadequate. An addendum opinion must be acquired for the VA to fulfill its duty to the Veteran. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Remand is also required of the claim of entitlement to TDIU because the claim is inextricably intertwined with the other claims being remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private physicians for treatment not already of record. 3. Then, schedule the Veteran for a VA examination to assess the nature and etiology of the claimed left shoulder disability. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiner should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner must consider the Veteran’s lay statements regarding the incurrence of the disability and continuity of symptomatology since service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any left shoulder disability, to include functional impairment, is related to any aspect of active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any left shoulder disability, to include functional impairment, is caused or aggravated by any service-connected disability. 4. Then, schedule the Veteran for a VA examination to assess the nature and etiology of the claimed back disability. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiner should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner must consider the Veteran’s lay statements regarding the incurrence of the disability and continuity of symptomatology since service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any back disability, to include functional impairment, is related to any aspect of active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any back disability, to include functional impairment, is caused or aggravated by any service-connected disability. 5. Then, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and etiology of hearing loss and tinnitus. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner must review the claims file and must note that review in the report. The examiner should set forth all examination findings, with the complete rationale for all conclusions reached. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that hearing loss and tinnitus are related to any injury or incurrence of trauma during the Veteran’s service. The examiner is asked to explicitly explain whether the Veteran’s hearing loss and tinnitus were due to trauma or injury during service, or due to progressive disease. The examiner should reconcile the opinion with the private audiologist opinion of record. 6. Then, schedule the Veteran for a VA examination to assess the nature and etiology of the claimed right-hand disability. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiner should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner must consider the Veteran’s lay statements regarding the incurrence of the disability and continuity of symptomatology since service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any right-hand disability is related to any aspect of active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any right-hand disability is caused or aggravated by any service-connected disability, to explicitly include from overuse compensating for the left-hand/scar disability. 7. Then, schedule the Veteran for a VA examination to assess the nature and etiology of the claimed psychiatric disability, to include depression. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiner should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner must consider the Veteran’s lay statements regarding the incurrence of the disability and continuity of symptomatology since service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disability is related to any aspect of active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disability is caused or aggravated by any service-connected disability, to explicitly include from the left-hand/scar disability. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.