Citation Nr: 21027699 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 20-20 377 DATE: May 6, 2021 ORDER A disability rating greater than 20 percent for bilateral hearing loss is denied. Service connection for a right shoulder disability is denied. Service connection for a left shoulder disability is denied. Service connection for a right hip disability is denied. Service connection for a left hip disability is denied. REMANDED Service connection for a cervical spine disability is remanded. Service connection for a dental disability for compensation purposes is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is manifested by hearing acuity of no worse than Level VI in the left ear and Level IV in the right ear. 2. The preponderance of the evidence is against finding that a right shoulder disability began during active service or is otherwise related to service. 3. The preponderance of the evidence is against finding that a left shoulder disability began during active service or is otherwise related to service. 4. The preponderance of the evidence is against finding that a right hip disability began during active service or is otherwise related to service. 5. The preponderance of the evidence is against finding that a left hip disability began during active service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1963 to October 1965. The Board remanded the claims in September 2020 to make efforts to obtain medical records. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Evaluations of defective hearing range from 0 to 100 percent. This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric Level I for essentially normal acuity, through numeric Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the Maryland CNC speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone decibel loss. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity. The Veteran was assigned a 20 percent rating for his bilateral hearing loss in a September 2018 rating decision. The Veteran contends he is entitled to a higher rating. VA audiometric testing in September 2018 revealed the following: HERTZ 1000 2000 3000 4000 Avg RIGHT 35 60 75 85 64 LEFT 35 35 75 70 54 Speech recognition was 76 percent in the right ear and 64 percent in the left ear. Applying the results of the September 2018 VA examination to Table VI reflects that the Veteran has Level IV hearing loss in the right ear and Level VI hearing loss in the left ear. These results when applied to Table VII result in a 20 percent disability rating. 38 C.F.R. § 4.85. Based on the above audiometric test results and a mechanical application of the rating criteria, the Board finds that the Veteran is not entitled to a rating greater than 20 percent for his bilateral hearing loss. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, the preponderance of the evidence is against finding a rating greater than 20 percent for the Veteran's bilateral hearing loss is proper. Because the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, the claim for a rating greater than 10 percent for bilateral hearing loss is denied Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Bilateral Shoulder Disability and Bilateral Hip Disability Because the separate claims for a right shoulder disability, left shoulder disability, right hip disability, and left hip disability are based on the same facts and assertions, they will be adjudicated together. The Board concludes that, while the Veteran has a diagnosis of bilateral hip osteoarthritis and bilateral shoulder arthritis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran underwent a VA examination in January 2020. The examiner ultimately concluded that it was less likely than not that the Veteran's current bilateral shoulder and hip conditions had its clinical onset during active service or is related to any in-service disease, event, or injury, and/or manifested within one year of service separation. Specifically, the examiner noted that the Veteran was involved in a motor vehicle accident during service in February 1964. However, the examiner went on to note that although this accident was documented in the Veteran's service treatment records, there was no noted shoulder or hip symptoms. Further, there was no noted shoulder or hip symptoms noted on the Veteran's separation examination. After reviewing the Veteran's current medical records, the examiner found that there are no records documenting shoulder or hip symptoms until 1998. The examiner went on to conclude that by the time hip and shoulder symptoms were documented in the record after the Veteran's service, the Veteran was in his 60s, an age where arthritis is common. This finding, in addition to the Veteran's post-service work in a physical occupation as a truck driver, led the examiner to ultimately conclude that the Veteran's current bilateral shoulder and hip disabilities are less likely than not related to service. While the Board notes that the Veteran has submitted various medical records illustrating the Veteran's current bilateral shoulder and hip disabilities, none of this evidence contradicts the January 2020 VA opinion and establishes a connection between these current disabilities and the Veteran's service. Although the Veteran is competent to report observable complaints, he is not competent to provide a diagnosis or etiology to account for such complaints. Rather this question requires medical expertise due to the complex nature of the disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, while the Veteran believes his bilateral shoulder and hip disabilities had their onset during service, or are otherwise related to service, the Board reiterates that the preponderance of the evidence weighs against finding that a nexus between the Veteran's service and these disabilities exists. REASONS FOR REMAND Cervical Spine Disability The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran's claimed cervical spine disability is etiologically related to his service, specifically, his documented motor vehicle accident that occurred in-service. Remand for examinations is required. Dental Treatment The Veteran claims that he had to have several teeth extracted as result of an injury suffered in-service. Specifically, the Veteran claims that he was hit in the fact while performing maneuvers. Further, the Veteran claims that his teeth had to be extracted as a result of this injury by Dr. Mainwaring. However, to date, there are no medical records from a Dr. Mainwaring in the Veteran's file. Therefore, remand is required in order to make efforts to obtain these dental records. TDIU The Veteran, in a February 2021 statement, made the claim that he is unemployable due to his disabilities. He again reiterated this claim in a March 2021 statement. Therefore, the Board finds that the issue of entitlement to a TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Additionally, the Board finds that the Veteran's claim of entitlement to a TDIU is inextricably intertwined with the claim for service connection for a cervical spine disability and dental treatment as the assignments of a disability rating and effective date for any potential grant of service connection would affect the Veteran's overall disability rating. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 1. Obtain any outstanding VA or private treatment dental records, to include all treatment records from Dr. Mainwaring regarding the extraction of the Veteran's teeth. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cervical spine disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including neck pain noted after a motor vehicle accident in February 1964. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, Associate 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.