Citation Nr: 21027973 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-22 413 DATE: May 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a left shoulder disability, to include pinched nerve, supraspinatus tear and osteoarthritis is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss began during active service. 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. 3. Resolving reasonable doubt in the Veteran's favor, his left shoulder disability is at least as likely as not related to carrying field radios in-service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in October 2019. A transcript of the hearing has been associated with the Veteran's VA claims file. During the hearing, the Veteran's representative asserted new and material evidence has been submitted in the form of the Veteran's sworn testimony. However, because the Veteran filed an NOD in June 2014 with respect to the April 2014 denial of service connection, and further filed a timely substantive appeal (VA Form 9) in April 2017, following the February 2017 Statement of the Case (SOC), the April 2014 rating decision did not become final, and no new and material evidence is required for the Board to consider the appealed issue on the merits. At the October 2019 Board hearing, the Veteran's representative stated that the Veteran waived RO consideration of new evidence to be submitted directly to the Board by the Veteran. This evidence included private medical treatment records and nexus statements. Written waivers of RO consideration of additional evidence were submitted in October 2019, December 2019, and December 2020. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1305. The Board notes part of the Veteran's claim was initially addressed as being for pinched nerve left shoulder. However, the record reveals other left shoulder diagnoses during the appeal period, including supraspinatus tear and osteoarthritis. Therefore, the Board has recharacterized the Veteran's claim to ensure that all left shoulder diagnoses are considered. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The case has been advanced on the Board's docket. Service Connection Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran contends his bilateral hearing loss and tinnitus are due to acoustic trauma in service. More specifically, he asserts that as a field radio operator in-service he worked for 10 to 12 hours at a time with static on the headphones and what he calls "squawking." See October 2019 Board Hearing Transcript. He stated that when you key the mic, especially if it wasn't keyed for a period of time, you would almost jump out of your seat every single time from that squelch. Id. He asserts he was responsible for maintaining M5 generators for the radio. Id. He testified that these were the loudest generators in the Marine Corps. Id. He asserts that his work location in Cherry Point was on the air strip. Id. As a result he was exposed to noise from C130s running up and down the airstrip every 45 minutes during the day. Id. He testified that after working all day he had a constant buzzing or ringing in his ears that would last an hour to an hour and a half at time. Id. In assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms associated with his hearing impairment and tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, he is not competent to provide evidence regarding his hearing loss in terms of puretone thresholds and speech discrimination percentage. Id.; see also 38 C.F.R. §§ 3.385, 4.85. Further, he is not competent to render an opinion on such a complex matter as the etiology thereof. See Barr, supra. As a result, the Board must rely on the medical evidence of record in these respects. Unlike hearing impairment, the Board notes that tinnitus has been recognized as a condition capable of both lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the Board finds his lay statements are competent to render a medical diagnosis of tinnitus. Nevertheless, he is still not competent to render an opinion on such a complex matter as the etiology thereof. See Barr, supra. In this regard, the Board must rely on the medical evidence of record. A review of the medical evidence of record leaves no doubt the Veteran has a current diagnosis of a bilateral hearing loss disability for VA compensation purposes as well as tinnitus. 38 C.F.R. §§ 3.385, 4.85; April 2014 VA examination; October 2019 private treatment record. As such the current disability element of these claims has been satisfied. The Veteran's DD Form 214 confirms his occupational specialty in-service was as a field radio operator and his last duty assignment was MCAS Cherry Point. As his lay statements regarding in-service noise exposure to static noise from headphones and maintaining generators and noise exposure from aircraft engines are consistent with the other evidence of record, the Board finds they are not only competent, but credible as well. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Accordingly, the in-service incurrence element of these claims has been met as well. Given the above, the crux of these claims is whether there is a nexus between the Veteran's current diagnoses of bilateral hearing loss and tinnitus and noise exposure from static noise from headphones and maintaining generators, and noise exposure from aircraft engines in-service. In furtherance of these claims, the Veteran has been examined by the VA once in April 2014. At that time, the VA examiner found that it was less likely than not either diagnosis was caused by or was otherwise related to his noise exposure in-service. The VA examiner reasoned noise-induced sensorineural hearing loss is typically greatest in the highest frequencies and least evident in the lower frequencies, often with a reasonable sharp transitional region between the affected and unaffected frequency regions. He reasoned that sudden onset tinnitus was reported in August 2011, 17 to 18 years after his military noise exposure. In contrast, the Veteran submitted a positive nexus opinion from a private board-certified otolaryngologist which indicates that there is a relationship between his in-service noise exposure and current disabilities. Dr. M.F. stated that she is familiar with the Veteran's history and he has no other known risk factors that may have precipitated his current condition. She opined that the Veteran's hearing loss and tinnitus is most likely caused by or a result of the Veteran's military service. In addition, the Veteran submitted an April 2017 buddy statement from Sgt. R.C., whom he worked with at Cherry Point. Sgt. R.C. stated that they worked just off the runway where they were around A/V8B Harrier and A6 intruder aircraft which are the loudest that are still in use today in the Marine Corps. He stated there were also F-18 hornet and F-15 strike eagles on base and that being radio operators, they were in close proximity of these aircraft for long periods of time. He stated that when deployed or in garrison for testing, MEP 5 generators were used and that these were of high decibel usage. He stated ear protection was worn but did not cover unexpected flybys, emergencies, or refueling. The Board has reviewed the medical opinions of record and finds the evidence to be at least in equipoise as to whether the Veteran's current hearing loss and tinnitus is related to his in-service noise exposure. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hearing loss and tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a left shoulder disability, to include pinched nerve, supraspinatus tear and osteoarthritis The Veteran contends he has a left shoulder disability attributable to active duty service. Specifically, he contends during field marches he had to not only carry the equipment every solider is required to carry, he also had to carry field radios. See October 2019 Board Hearing Transcript. As a result, he noticed it had an effect on his left shoulder. Id. An October 2019 MRI revealed a small intrasubstance interstitial concealed tear involving the anterior aspect of infraspinatus tendon at the footplate, changes of osteoarthritis involving the AC joint with reactive bone marrow edema and capsular hypertrophy and changes of osteoarthritis involving the glenohumeral joint. During his October 2019 Board hearing, the Veteran testified that on marches he would carry his regular pack and equipment plus the radios and spare batteries. He testified that he was right-handed, so his rifle was on his right side and all the extra weight was on the left side. He testified that after the marches his left shoulder would act up, but he would not go to sick call for it. He testified that he would suck it up. He testified that he self-medicated, self-treated and dealt with it. He testified that around 1995 he started getting sharp spasms in his left shoulder, like a pinching or stabbing. He testified that he has been continuing to deal with it but it's getting to a point where he has to tell his doctor. He stated that the pain catches him off guard and he will sometimes drop things. In support of his claim the Veteran has submitted a November 2019 private positive nexus opinion from orthopedics APRN, K.M. K.M. provided a diagnosis of osteoarthritis left should and supraspinatus tear left shoulder and opined that the Veteran's disability is most likely caused by or a result of service. She noted the Veteran's report of carrying heavy packs of 40 to 50 pounds during his military service and that he has been experiencing left shoulder pain for over 20 years. She noted that his pain has worsened ever since service. K.M. noted that a correlation has been noted between left shoulder pain and overuse injury which started while in service. As there is no competent evidence to the contrary, the Board finds that the Veteran's left shoulder disability is related to service. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a left shoulder disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.