Citation Nr: 21021893 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 19-35 653 DATE: April 14, 2021 ORDER Entitlement to service connection for a left shoulder condition is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to special monthly compensation based on aid and attendance is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s left shoulder condition is at least as likely as not etiologically related to his active duty service. 2. The Veteran’s tinnitus is at least as likely as not due to his active duty service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a left shoulder condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1969 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision from a Department of Veteran’s Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Left Shoulder The Veteran is seeking service connection for his left shoulder disability which he contends originated in service. The medical evidence confirms that the Veteran has current diagnoses of left shoulder degenerative joint disease and left shoulder rotator cuff tear. See May 2018 VA Shoulder Conditions examination; see also March 2020 Private examiner’s opinion. The central issue that must be resolved is whether the Veteran’s current disabilities originated in service or are otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran’s service treatment records (STRs) do contain complaints of, and treatment for an injury to the Veteran’s left shoulder. Specifically of note, treatment notes from April 1970 documenting that the Veteran fell, had immediate pain, and inability to move his left shoulder; and a May 1970 note following up on his anterior shoulder dislocation. The Veteran was afforded a May 2018 VA Shoulder Conditions examination. The VA examiner, after an in-person examination, diagnosed the Veteran with left shoulder degenerative joint disease. The examiner noted that the medical record indicated that the Veteran fell off a ladder in 1997 and injured his left shoulder. Further the examiner noted that the Veteran continues to experience left shoulder pain, weakness, and decreased range of motion. The examiner opined that the Veteran’s left shoulder disability was less likely than not etiologically related to his active duty service. The rationale provided was that his current left shoulder injury was caused by a fall in 1997 and had its onset 27 years after the Veteran left active duty service. As such, the examiner noted that a nexus could not be provided. The Veteran submitted several lay statements where he noted that he fell twice in service while trying to board his submarine and dislocated his shoulder. The Veteran noted that he continued to experience pain in his shoulder to present day. Further, during his January 2021 Board hearing, the Veteran testified that while in service he fell twice while trying to board a submarine and was sent to the hospital. While at the hospital, he had his shoulder popped back in to place and eventually put into a cast. The Veteran further testified that he has had several steroid injections into his shoulder and that his shoulder has been hurting him ever since his in-service accidents. The Veteran also clarified the 1997 injury, noting that he hurt his shoulder again after tripping over a gas hose, but when he fell off a ladder he landed on his back. The Veteran also submitted a March 2020 private medical opinion from a Dr. D.P., the Veteran’s orthopedic surgeon. Dr. D.P. noted that he reviewed the Veteran’s medical records, including those associated with his military service, and has been treating the Veteran for approximately 6 months. Dr. D.P. noted that there was a clearly documented shoulder injury in the Veteran’s STRs which required treatment. Dr. D.P. opined that it is more likely than not that the Veteran’s injuries which occurred in active duty service are etiologically related to his present left shoulder condition. The rationale provided was that Dr. S.P.’s 30 years of experience, and the medical literature, strongly support the notion that previous shoulder injuries of the same sort the Veteran had, can and do frequently lead to chronic issues. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The VA examiner’s opinion was based on a later injury the Veteran experienced. The examiner did not, however, comment on the symptoms that the Veteran had been experiencing since his in-service injury. The Board notes, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. Additionally, the Veteran submitted a positive nexus opinion from Dr. B.P. which reviewed the Veteran’s medical records in their entirety. The Board has considered the Veteran’s lay statements in support of his claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that he experienced left shoulder pain since his injury in-service which has persisted to present day. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran’s own reports of experiencing ongoing pain to be at least as probative as the above-noted examiners’ findings, as the Veteran is truly the only person capable of such observation. Given the VA examiners’ opinion, the Veteran’s competent lay statements, Dr. B.P.’s private medical opinion, and the Veteran’s STRs the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran’s left shoulder disability is at least as likely as not etiologically related to his active duty service. The evidence is thus in equipoise as to whether the Veteran’s claimed left shoulder condition is etiologically related to his active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for the Veteran’s left shoulder disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In sum, the Board is satisfied that the evidence supporting the claim is at least in equipoise with that against the claim. Therefore, the Veteran is entitled to service connection for his left shoulder condition. Tinnitus The Veteran seeks service connection for tinnitus, which he contends is etiologically related to service. The medical evidence confirms a current diagnosis of tinnitus. See May 2018 VA Hearing Loss and Tinnitus examination. The central issue that must be resolved is whether the Veteran’s current disability originated during service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran’s service treatment records (STRs) contain no complaints, treatment, or diagnosis of tinnitus. However, the Veteran’s exposure to excessive noise in service has been conceded. The Veteran testified during his January 2021 Board hearing that tinnitus began a few months after he left active duty service. Specifically, the Veteran noted that his tinnitus began around Thanksgiving after he had left service, and that he has heard ringing in his ears ever since. The Board finds the Veteran’s lay statements credible in this regard. Tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to describe his tinnitus symptomatology. Additionally, the Board notes, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. at 496. Further, the Veteran noted that he worked as a machinist mate, a gun’s mate, and worked on submarine machinery while in the military, but stated he was not given any hearing protection. In sum, resolving any doubt in the Veteran’s favor, because tinnitus is a condition capable of lay observation, the Veteran is competent to testify as to his observed symptoms and the actual existence of the condition. The Board finds that the Veteran’s assertions are credible. Because the Veteran’s tinnitus began within a year of separation and has continued to the present, service connection for tinnitus is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Back and Neck The Board notes that to date, the Veteran has not been afforded VA examinations to address the etiology of his claimed back and neck disabilities. A review of the Veteran’s treatment notes indicates that he has been diagnosed and treated for back and neck conditions. Further, in his January 2021 Board hearing, and in lay statements the Veteran has indicated that his claimed conditions may potentially be related to his active duty service. Specifically, the Veteran has stated that his back and neck pain began after an in-service injury where he slipped and fell entering a submarine. Further, the Veteran’s wife has submitted lay statements noting that when she first met the Veteran she was an office manager for a sports medicine doctor the Veteran was seeing for his back pain. As such, the Board finds examinations and medical opinions are necessary to determine whether the Veteran’s currently diagnosed disabilities were caused by, aggravated by, or otherwise etiologically related to his active military service. Bilateral Hearing Loss The Board is of the opinion that additional development is required before the remaining issue on appeal is decided. While the RO obtained a May 2018 VA examination for the Veteran’s claimed bilateral hearing loss disability, the Board finds it to be inadequate. In proffering their opinion, the VA examiner did not address any impact the reported blow to the left ear in boot camp or the Veteran’s MOS could have had on his hearing. Additionally, the Board notes that since the May 2018 examination, the Veteran has clarified his vague statement regarding his hearing loss beginning “long ago.” The Board notes that in his January 2021 Board hearing, the Veteran noted that he began experiencing hearing difficulty a few months after leaving service, specifically around the Thanksgiving after leaving service. The Board also notes a March 2017 Audiology note which attributes the Veteran’s hearing loss, left ear worse than right, to a history of excessive gunfire. As such, the Board finds an additional examination is required to determine the etiology of the Veteran’s claimed disability. SMC and TDIU Finally, the Board notes the issue of entitlement to a TDIU and SMC must be held in abeyance at this time, because these issues are intrinsically intertwined with the above-noted remanded issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Afford the Veteran VA examinations by an examiner(s) with sufficient expertise to address the etiology of the Veteran’s back, neck, and bilateral hearing loss disabilities. The electronic records should be made available to and reviewed by the examiner(s). All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. The Board would like to specifically draw the examiners attention to the April 2020 and February 2021 lay statements of the Veteran’s wife, the January 2021 statement from the Veteran’s friend, the March 2017 audiological treatment note, and the Veteran’s testimony regarding his treatment for his conditions in from his January 2021 Board hearing. (Dates given are the dates the records were uploaded to the claims file). Following a review of the relevant records and lay statements, the examiner(s) should state whether the Veteran’s claimed disabilities at least as likely as not (a 50 percent probability or greater): originated during his period of active service to include as secondary to, or aggravated by, any service connected disabilities. For purposes of these opinions, the examiner(s) should assume that the Veteran is a reliable historian and must not ignore the Veteran’s competent reports of in-service injuries, or of symptoms experienced during active service and since. In this regard, the examiner(s) must discuss and consider the Veteran’s competent lay statements. The examiner(s) must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.