Citation Nr: 21025877 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-38 486A DATE: April 29, 2021 ORDER Service connection for a right shoulder injury is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s right shoulder injury is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year from the date of discharge from service. 2. The Veteran’s bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year from the date of discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder injury have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to December 1969. He died in February 2018, and the appellant is his surviving spouse, who was recognized as the substituted claimant for the purpose of processing his appeal to completion in May 2018. 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, prior to his death, in his November 2014 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge; however, he withdrew such request in a January 2018 written correspondence. 38 C.F.R. § 20.702(e), 20.704(e). In November 2018, the Board remanded the appeal for additional development and it now returns for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis and organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. The Court has held that service connection can be granted for hearing loss where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a right shoulder injury. The appellant asserts that the Veteran had a right shoulder injury that began in service. Specifically, the Veteran reported that he injured his right arm when he was running to a bunker, fell, and tried to catch himself with his right arm (which pushed back into his shoulder) while stationed in the Republic of Vietnam. A July 2013 MRI reflects findings of: (1) complete tears of the supraspinatus and infraspinatus tendons; (2) a suspected intra-articular long head biceps tendon tear; (3) severe AC joint degenerative change and acromiohumeral interval narrowing; and (4) minimal degenerative change of the glenohumeral joint and degenerative fraying. As such, the Board finds the evidence establishes a current disability for service connection. Concerning an in-service event, injury, or illness, the Veteran’s service treatment records (STRs), including his entrance and separation examination reports, are silent as to complaints, treatment, or diagnosis referable to a right shoulder disorder. However, his reports of the circumstances surrounding the nature of his service in Vietnam is consistent with his military occupational specialty of combat engineer and his documented combat service. Thus, the dispositive issue is whether the Veteran’s right shoulder disorder is related to his military service, to include his reported in-service fall. In this regard, the Board finds the opinion provided by a VA examiner in August 2020 is sufficient to determine the issue of entitlement to service connection for a right shoulder injury. Specifically, the examiner conducted a review of the Veteran’s claims file, to include his STRs and the prior November 2018 Board remand. Following such review, the examiner found that the Veteran’s right shoulder injury was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the opinion, the examiner indicated that there was no documented evidence in the Veteran’s STRs of any injury to the right shoulder or any complaints of pain in the right shoulder in 1969. She further indicated that the Veteran’s separation examination was negative for right shoulder complaints; and his post-service treatment records were negative for any complaints or treatment of the right shoulder until 2013 – approximately 40 years following the Veteran’s discharge from service. Here, the examiner explained that there was no continuity of care or chronicity of care established. Additionally, the examiner noted the July 2013 MRI identified “two rotator cuff tears, severe degenerative arthritis [of the] AC joint, degenerative fraying of the labrum and DJD [degenerative joint disease] of the glenohumeral joint.” Here, she acknowledged that while the Veteran’s rotator cuff tears were consistent with trauma, such were not consistent with trauma which occurred 40 years prior. Further, the examiner indicated that the Veteran’s degenerative arthritis/joint disease was related to the natural aging process, as opposed to an in-service injury or trauma. The examiner concluded that there was no evidence to show that the Veteran’s right shoulder disorder was related to his combat service or his fall in 1969; therefore, there was no nexus connecting such disability to his military service. In support of her opinion, the examiner cited an online medical article regarding the pathogenesis of osteoarthritis. The Board affords great probative value to the August 2020 VA examiner’s opinion as it reflects consideration of all relevant facts, specifically citing to service treatment records, VA and private treatment records, the Veteran’s lay statements, and medical literature. In addition, it includes detailed rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). There is no medical opinion to the contrary. The Board also acknowledges the appellant’s and Veteran’s lay statements concerning the history of his right shoulder symptoms. In pertinent part, the medical evidence does not support chronicity, to include specifically the normal separation examination. Additionally, the Veteran’s post-service treatment records reveal that he first complained of right shoulder pain in June 2012. Further, the Board finds the VA examiner’s opinion concerning the etiology of the Veteran’s symptoms more probative than their lay statements. In this respect, a layperson without medical training is not qualified to render a medical diagnosis or medical opinion concerning the etiology of a right shoulder disorder as such concern an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The evidence does not show that the appellant possesses, nor the Veteran possessed, the requisite training or credentials needed to render such opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the Board does not afford the appellant’s and Veteran’s lay statements significant probative value. In conclusion, the Board finds the probative evidence does not establish that the Veteran’s right shoulder disorder was causally or etiologically related to any disease, injury, or incident during service. Additionally, the evidence does not demonstrate that right shoulder DJD manifested within one year of his separation from active duty. Consequently, service connection for such disorders is not warranted. As the preponderance of the evidence is against the appellant’s claims, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for bilateral hearing loss. The appellant asserts that the Veteran had bilateral hearing loss as a result of in-service noise exposure. Specifically, the Veteran reported that his duties as a combat engineer required him to regularly blow things up. Initially, the Board notes that the Veteran has a current diagnosis of bilateral hearing loss. See January 2012 VA Examination. Further, the Veteran’s report of exposure to noises related to demolition while serving in Vietnam is consistent with the nature of such service and his military occupational specialty of combat engineer. Consequently, the remaining inquiry is whether the Veteran’s hearing loss is related to such in-service noise exposure. In this regard, the Veteran’s STRs are silent as to complaints, treatment, or diagnosis referable to hearing loss, and in-service audiometric testing did not show hearing loss. Specifically, audiology testing upon entrance to service in March 1967 revealed the following auditory threshold findings, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 -5 -5 X -5 LEFT 10 5 0 X 0 Audiology testing upon separation from service in December 1969 revealed the following auditory threshold findings, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 In connection with his claim for service connection, the Veteran was afforded a VA examination in January 2012. At such time, he was noted to have bilateral hearing loss for VA purposes. As to the etiology of the Veteran’s hearing loss, the examiner opined that it was less likely than not that such was related to his military noise exposure. As rationale for the opinion, the examiner reported that a review of the Veteran’s STRs revealed that his hearing thresholds were within normal limits throughout service, and did not change significantly from March 1965 to December 1969. However, as the Board explained in its November 2018 remand, the January 2012 opinion was inadequate for adjudication purposes due to the examiner’s reliance on a normal separation examination. Accordingly, an addendum opinion was obtained in October 2020. At such time, the examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to his military noise exposure. As rationale for the opinion, the examiner reported that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which was objective evidence of no permanent auditory damage on active duty from conceded noise. The examiner further reported that there was no report of complaint/treatment for a hearing decrease in the Veteran’s STRs or at separation. Here, she indicated that, although noise exposure was conceded and the relationship of noise, auditory damage, and hearing loss was well-established, auditory damage and hearing loss were not conceded based on noise alone. The examiner explained that there must be a nexus of auditory damage to relate the Veteran’s current hearing loss to military noise and not another etiology. She concluded that the evidence was against a nexus in this case. In support of her opinion, the examiner identified numerous medical studies regarding delayed onset of noise (induced hearing loss), which presented conflicting results. Here, she noted that, in light of such conflicting study results, the Institute of Medicine (IOM) (2005) found that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after noise exposure. The examiner further noted that rodent studies by Kujawa and Liberman (2006 and 2009) did not conclude that delayed onset changes in hearing sensitivity were observed in noise exposed ears; and that generalizing findings from rodent studies to humans was fraught with difficulties and at beast should be undertaken with great caution according to Shanks et al (2008). Further, the examiner indicated that the human studies by Gates et al (2000) and Rosenhall (2003) did not specifically apply to the Veteran’s case regarding progression of hearing loss in a veteran with confirmed normal hearing thresholds after exposure to military noise. The examiner determined that, despite her best efforts, she had been unable to identify studies that evaluated the progression of hearing loss among subjects with confirmed normal hearing thresholds after confirmed histories of noise exposure. Thus, she concluded that the 2005 IOM statement still held true; and that there was no conclusive data supporting delayed onset noise induced hearing loss. The Board finds the October 2020 VA examiner’s opinion to be highly probative as it considered all of the pertinent evidence of record, to include the Veteran’s STRs and statements, and medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. The Board recognizes that the Veteran was competent to report diminishing hearing acuity as it is subjectively observable; however, he was not competent to diagnose hearing loss as defined by VA regulations as such require the administration and interpretation of audiometric testing; and neither he nor the appellant are competent to opine on the etiology of hearing loss as such is a complex medical question involving the inner workings of the ear, and is beyond an immediately observable cause-and-effect relationship. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, their statements regarding the presence of bilateral hearing loss as defined by VA regulations and the etiology of such disorder are not competent and, therefore, are entitled to no probative weight. Further, as the probative evidence fails to demonstrate that the Veteran’s bilateral hearing loss manifested within one year of his separation from active duty, presumptive service connection for such disorder is not warranted. In this regard, as noted previously, the Veteran’s reports as to the diagnosis of hearing loss are not competent; and such a diagnosis was first identified in January 2012 — more than 40 years after his separation from service. Furthermore, his December 1969 separation examination revealed his hearing acuity was normal bilaterally. Consequently, the Board finds that bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of separation. Therefore, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant’s claim. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.