Citation Nr: 21028604 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-53 747 DATE: May 11, 2021 ORDER The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability is dismissed. The issue of entitlement to service connection for a right knee disability is dismissed. Entitlement to a rating in excess of 80 percent for grand mal seizure disorder is denied. Entitlement to an initial rating in excess of 20 percent for a left (minor) shoulder strain, impingement syndrome, and labral tear with superior labral anterior-posterior lesion is denied. New and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disability, and the request to reopen is granted. Entitlement to service connection for depressive disorder due to a general medical condition and unspecified trauma/stressor related disorder, to include insomnia and nightmares, is granted. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. On the record at the August 2020 Board hearing, the Veteran withdrew his appeal seeking to reopen the claim of entitlement to service connection for a right ankle disability. 2. On the record at the August 2020 Board hearing, the Veteran withdrew his appeal seeking entitlement to service connection for a right knee disability. 3. The Veteran's grand mal seizure disorder has not averaged at least one major seizure per month over a one-year period at any point during the appeals period. 4. The Veteran's left (minor) shoulder strain, impingement syndrome, and labral tear with superior labral anterior-posterior lesion does not manifest in limitation of motion to 25 degrees from his side. 5. The Veteran has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right shoulder disability. 6. The Veteran has been diagnosed with depressive disorder due to a general medical condition and unspecified trauma/stressor related disorder, to include insomnia and nightmares, that has been attributed to his military service. 7. The Veteran's sleep apnea was not incurred during or otherwise related to service. 8. The Veteran does not have a current hearing loss disability for VA purposes. 9. The Veteran did not exhibit tinnitus in service; tinnitus did not manifest to a compensable degree within one year after discharge from service; and tinnitus is not otherwise shown to be associated with service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the issue of entitlement to service connection for a right knee disability by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for entitlement to a rating in excess of 80 percent for grand mal seizure disorder have not been met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8910, 8911. 4. The criteria for entitlement to an initial rating in excess of 20 percent for a left (minor) shoulder strain, impingement syndrome, and labral tear with superior labral anterior-posterior lesion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 5. New and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 6. The criteria for entitlement to service connection for depressive disorder due to a general medical condition and unspecified trauma/stressor related disorder, to include insomnia and nightmares, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 7. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 8. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). 9. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to October 1989. This matter comes before the Board on appeal from a December 2016 Regional Office (RO) rating decision. In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Withdrawn Claims 1. The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability is dismissed. 2. The issue of entitlement to service connection for a right knee disability is dismissed. The Veteran affirmed on the record during the August 2020 Board hearing that he wished to withdraw the claim seeking to reopen the issue of entitlement to service connection for a right ankle disability and his claim of entitlement to service connection for a right knee disability. The Board finds that the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. Given these circumstances, and particularly because the Veteran's withdrawal was done via his representative in the Veteran's presence, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing or at a Board hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. The Veteran has properly withdrawn his appeal seeking entitlement to the above benefits. Therefore, there remain no allegations of errors of fact or law for appellate consideration on those matters. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. Increased Rating Disability ratings are determined by comparing a veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. "Staged ratings," or different percentage evaluations for separate periods based on the facts found, may also be awarded. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 3. Entitlement to a rating in excess of 80 percent for grand mal seizure disorder is denied. The Veteran's seizure disorder is rated under the diagnostic criteria found in the General Rating Formula for Major and Minor Epileptic Seizures under 38 C.F.R. § 4.124a, Diagnostic Code 8911. The General Formula provides that a 20 percent rating is warranted when there is at least one major seizure in the last two years, or at least two minor seizures in the last six months. A 40 percent evaluation is warranted for at least one major seizure in the last six months or two in the last year, or for an average of five to eight minor seizures per week. A 60 percent evaluation is warranted for averaging at least one major seizure in four months over the last year, or nine to ten minor seizures per week. An 80 percent evaluation is warranted for averaging at least one major seizure in three months over the last year, or more than ten minor seizures weekly. A 100 percent evaluation is warranted for averaging at least one major seizure per month over the last year. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Diagnostic Code 8910, Note (1), (2). The General Rating Formula provides that there will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a, Note (3). The Veteran underwent a VA examination in connection with this claim in October 2016. This examination report notes, in relevant part, that the Veteran has had seizure activity characterized by generalized tonic-clonic convulsions and episodes of unconsciousness. It was noted that his most recent seizure activity was in July 2014. It was noted that he has had 0 or 1 minor seizures in the past six months. It was noted that he has had no major seizures in the past 2 years. It was noted that he has more than 10 minor psychomotor seizures per week. He has not had any major psychomotor seizures in the past two years. It was noted that the Veteran "reports involuntary movements of the limbs that occur on a daily basis. He believes it may be seizure activity. Although he has not had grand mal seizures since 2014." When asked at his August 2020 Board hearing to describe his current symptoms, he reported that "right now I have twitches during the day like, you know four or five, you know, sometimes six twitches a day.... I'm on medication but it don't know when it's going to happen." (See Board hearing transcript, page 7.) Based on the above, the Board finds that entitlement to a 100 percent rating is not warranted. The above evidence, along with the VA and private medical evidence of record, reflects that the Veteran has not had a major seizure during the appeals period. The October 2016 VA examination report expressly notes that the Veteran has not had any major seizures during the appeals period, and the seizures that were described by the Veteran at his Board hearing fall under the category of "minor seizures." The Board acknowledges that the Veteran experiences frequent, significant impairment from numerous minor seizures. The Board finds, however, that these seizures fit squarely within the rating criteria for an 80 percent rating. The criteria for a 100 percent rating for his seizure disorder are not met. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. 4. Entitlement to an initial rating in excess of 20 percent for a left (minor) shoulder strain, impingement syndrome, and labral tear with superior labral anterior-posterior lesion is denied. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See generally DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Actually painful, unstable, or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Joints are to be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if applicable, with the range of the opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Estimates of additional functional impairment during flare-ups, if any, are also to be recorded, or an explanation with adequate rationale must be given as to why such estimates are not possible. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran's left shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Ratings under Diagnostic Code 5201 differ depending on whether the dominant (major) or non-dominant (minor) extremity is being rated. In this case, the Veteran is right-hand dominant, so his left upper extremity is rated as his minor extremity. Under Diagnostic Code 5201, limitation of motion of the minor extremity at the shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 20 percent rating for the minor extremity. Where motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity. Id. Turning to the evidence of record, a December 2016 VA examination report notes that the Veteran underwent physical therapy at a private facility for several months. Review of these records, and of his VA medical records, reveals no indication that the Veteran's range of motion has been limited to no more than 25 degrees from his side. The December 2016 VA examination report notes that the Veteran reported flare-ups, noting that he is "unable to use left shoulder due to pain with overhead use of left arm." Initial range of motion testing was flexion and abduction to 100 degrees. Functional loss was due to pain, and there was pain on weight bearing. There was no additional functional loss or range of motion loss after three repetitions. On flare-up, the Veteran reported interference "with overhead use and lower extremity dressing." The Veteran testified at his August 2020 Board hearing that "the symptoms are I can't even put my arm over my head anymore." (See Board hearing transcript, page 12.) The Board finds that the criteria for entitlement to a rating in excess of 20 percent is not warranted, as the Veteran's left arm is not limited to movement no more than 25 degrees from his body, even when considering any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint. During flare-ups, the Veteran has described functional impairment as an inability to raise his arm over his head. This is consistent with the current assigned rating. The Board notes that some of the rating criteria under 38 C.F.R. § 4.71a have recently changed, effective February 7, 2021. There has been no substantive change to the criteria under which the Veteran is currently rated. Thus, a higher rating is not warranted under the new rating criteria. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. Service Connection 5. New and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder disability, and the request to reopen is granted. Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for listed chronic diseases, such as sensorineural hearing loss and tinnitus, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran's claim of entitlement to service connection for a right shoulder disability was previously denied in a July 1990 rating decision. The decision noted that the Veteran's in-service right shoulder injury is "considered to have been acute and self-limiting," and "there is no evidence of chronic residual disability." The Veteran was notified of this decision and neither initiated an appeal nor submitted new and material evidence. Therefore, that decision was final. The most recent final denial of the Veteran's right shoulder claim occurred in a May 1991 rating decision. This rating decision notes that medical records contain "no notation for any ... right shoulder condition." The Veteran was notified of this decision and neither initiated an appeal nor submitted new and material evidence. Therefore, that decision was final. The Board finds that new and material evidence has been received in the form of the Veteran's August 2020 Board hearing testimony, in which he stated that he receives right shoulder treatment from VA and that he is unable to raise his right arm above his head. (See Board hearing transcript, pages 8, 12.) This evidence is new in that it was not of record at the time of the May 1991 rating decision. It is material in that it contains competent lay testimony of right shoulder impairment. Therefore, new and material evidence having been received, the claim of entitlement to service connection for a right shoulder disability is reopened. To this extent, the claim is granted. It will be considered on the merits below. 6. Entitlement to service connection for depressive disorder due to a general medical condition and unspecified trauma/stressor related disorder, to include insomnia and nightmares, is granted. The Veteran contends that he suffers from a current acquired psychiatric disability due to service, to include as due to a motor vehicle accident that he was in during service. The Veteran's VA medical records include a statement from his treating psychiatrist stating that the Veteran "currently carries the diagnosis of Depression due to a general medical condition as well as Unspecified Trauma/Stressor related disorder, r/o PTSD as categorized under the DSM-V (Diagnostic and Statistical Manual of Mental Disorders)." Among other symptoms, this record associates "insomnia with both initial and middle insomnia with nightmares and depressed mood." The psychiatrist noted that the Veteran "has described experiencing a specific military service related trauma, specifically involving a motor vehicle accident while stationed in Korea." She opined that, "Given his current symptom burden, it is my opinion that it is at least as likely as not that his traumatic incident in the service has contributed to his current symptomatology." The Board notes that the Veteran's VA medical records also contain a diagnosis of "Depression Related to General Medical Condition" under the DSM-5. As noted above, service connection is in effect for a seizure disorder and a left shoulder disability. He has a combined 80 percent disability rating due to these disabilities. With respect to his seizure disorder, he described his history of seizures and has stated that he has "memory loss, spasms, nightmares, insomnia, anxiety" in connection with this disorder, symptoms that (aside from the spasms) have been associated with his psychiatric disability. (See Board hearing transcript, page 10.) To the extent that the Veteran's initial claim specifically mentioned PTSD, the Board notes that PTSD has not been diagnosed, either by the December 2016 VA examiner or by a treating psychiatric care provider. In any event, the above grant is considered to be a complete grant of the benefit sought be the Veteran, as the Veteran has claimed service connection for psychiatric impairment regardless of the diagnosis, and the Veteran himself does not possess the necessary medical expertise to diagnose the disability or disabilities with which he suffers. In short, the Board finds that the Veteran's current psychiatric symptoms have been attributed to a diagnosis (depressive disorder due to a general medical condition and unspecified trauma/stressor related disorder, to include insomnia and nightmares) pursuant to the DSM-5 and that this disability has been attributed to his military service. Therefore, entitlement to service connection for depressive disorder due to a general medical condition and unspecified trauma/stressor related disorder, to include insomnia and nightmares, is granted. 7. Entitlement to service connection for sleep apnea is denied. The Veteran has claimed entitlement to service connection for sleep apnea. At the Veteran's Board hearing, it was clarified that the Veteran is actually claiming service connection for a sleep disorder manifested by insomnia and nightmares, and not for sleep apnea. (See Board hearing transcript, pages 4, 11.) The Board has granted entitlement to service connection for the Veteran's insomnia and nightmares as part of his psychiatric disability, above. Because the Veteran has perfected an appeal for entitlement to service connection for sleep apnea, the Board will adjudicate that claim at this time. Turning to the evidence of record, the Veteran has a current diagnosis of obstructive sleep apnea with an estimated onset date in August 2014. (See November 2017 Disability Benefits Questionnaire.) It is unclear from the record how long the Veteran had been experiencing sleep apnea symptoms, but there is no indication, either in a medical record or in the Veteran's own lay statements, that he had been experiencing these symptoms ever since service. His service treatment records contain no indications of sleep apnea. No medical professional has linked the Veteran's sleep apnea to his military service. In short, the Board finds that the record does not suggest that the Veteran's sleep apnea arose during service or is otherwise related to service. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. 8. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that he has a current hearing loss disability due to in-service noise exposure. Specifically, he reported at his August 2020 Board hearing that he suffered acoustic trauma because he "worked on F-16s the whole time I was in the service and they get pretty loud," and noted that he worked on them "[f]or four years." (See Board hearing transcript, page 8.) The Veteran's military occupational specialty (MOS) was "F-16 Avionics Systems Specialist, Communication, Navigation and Penetration Aids Systems." The Board finds that the Veteran's reported noise exposure is consistent with his MOS. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (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, or 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 Veteran underwent a VA examination in connection with this claim in October 2016. The audiometry examination findings from this examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 20 15 LEFT 10 5 25 15 25 The four-frequency average was 14 decibels in the right ear and 18 decibels in the left ear. The speech discrimination scores were 96 percent in the right ear and 94 percent in the left ear. These readings do not reflect a current hearing loss disability for VA compensation purposes. The Veteran has submitted a January 2016 private audiogram. The Board cannot use this report to determine whether the Veteran has a current hearing loss disability, however, as it is unclear whether the test was conducted pursuant to the VA standards of 38 C.F.R. § 3.385. Clarification is unnecessary because there is sufficient evidence of record to render a determination. Cf. Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). The Board acknowledges that the Veteran himself believes that he has a current hearing loss disability. The Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. A layperson may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the case at hand, however, while the Veteran is competent to describe hearing difficulties, he does not possess the necessary medical expertise to diagnose a hearing loss disability pursuant to VA regulations. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), it was noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents resulted in disability. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of a diagnosis of a current bilateral hearing loss disability, service connection for bilateral hearing is not warranted. The Board has considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against this claim and, therefore, the claim is not in equipoise. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for bilateral hearing loss must be denied. 9. Entitlement to service connection for tinnitus is denied. As with his hearing loss claim, the Veteran contends that he has tinnitus due to in-service noise exposure. As noted above, the Board finds that the noise exposure the Veteran has reported having suffered from working on F16s for four years is consistent with his MOS. The Veteran's service treatment records reflect that he neither complained of nor was treated for tinnitus at any point during service. A January 2016 private medical record notes an impression of bilateral tinnitus and notes "Hx noise exposure in military." The Veteran underwent a VA examination in October 2016. At that time, he "report[ed] tinnitus 'onset over 20 years' ago." It was noted that "Circumstances surrounding tinnitus onset were unknown." He "describe[d] his tinnitus as a constant bilateral ringing." Based on review of the record and interview and examination of the Veteran, the examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. In her rationale, the examiner noted that the "Veteran's hearing was within normal limits bilaterally at time of enlistment and separation." She noted that "There were no permanent thresholds shifts and therefore no evidence of noise injury/acoustic trauma." The Board notes that both the January 2016 and October 2016 opinions were authored by audiologists who possess the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Board finds, however, that the October 2016 VA examination report is more probative than the private opinion, as only the VA opinion discusses the findings of the service treatment records. The VA examiner provided a rationale for her opinion, noting that the service treatment records demonstrated no permanent thresholds shifts and no objective evidence of a noise injury. On the other hand, the January 2016 private opinion does not address the information contained in the service treatment records. For this reason, the Board finds that the January 2016 opinion is less probative than the VA opinion and does not justify a grant of this claim. The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the Veteran is ultimately not competent to link his current tinnitus to service in light of the fact that he has not reported an in-service onset of tinnitus. Nor does the evidence reflect that the Veteran's tinnitus began within one year of separation from service and persisted continuously from that time to the present. Moreover, only in the presence of acoustic trauma is tinnitus deemed an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Here, although the Veteran had noise exposure, the VA examiner found no resultant noise injury or acoustic trauma stemming from the noise exposure. Therefore, entitlement to service connection for tinnitus based on chronic disability is not met. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran contends that he injured his right shoulder in the in-service motor vehicle accident. (See Board hearing transcript, pages 5-6.) The Veteran's service treatment records reflect that he sought treatment for his right shoulder multiple times in January 1988, December 1988, January 1989, and June 1989. A December 1988 service treatment record notes that the Veteran's right shoulder injury was "s/p MVA." Another record reflects that the motor vehicle accident occurred in December 1988. The Veteran underwent a VA examination in December 2016. The VA examiner diagnosed no current right shoulder disability. A January 2017 VA medical record notes that, on examination, the Veteran's bilateral shoulders had "limited overhead abduction and rotation, mild right anterior tenderness." A May 2017 VA medical record notes restricted internal rotation of both shoulders. A July 2017 VA medical record notes that the Veteran reported that he has had chronic pain for several years that had worsened six weeks earlier after he had reached for an object. It was noted that "since that time he has recovered back to base line with [occasional] symptoms while reaching above shoulder level." Following physical examination and diagnostic testing, the resulting VA medical record notes an impression of "Chronic shoulder pain with mild shoulder stiffness and likely exacerbation symptoms which are now improved related to sudden movement." The Veteran testified at his August 2020 Board hearing that he had been receiving treatment for his right shoulder at VA prior to the COVID pandemic. (See Board hearing transcript, page 8.) He also testified that he cannot move his right arm above his head. (See Board hearing transcript, page 12.) The Board notes that neither the December 2016 VA examination report nor the VA medical records, which were last updated in September 2017, reflect the presence of a current right shoulder disability. The Board notes, however, that the records suggest the presence of functional impairment in the Veteran's right shoulder. The U.S. Court of Appeals for the Federal Circuit has found that the term "disability" as used in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and held that pain alone can serve as a functional impairment and therefore qualify as a disability. Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018). Thus, even though the records that are currently associated with the claims file have not diagnosed a current right shoulder disability, the fact that the VA medical records and the Veteran's hearing testimony suggest the presence of functional impairment means that a remand for a new examination and etiology opinion is necessary. 2. Entitlement to a TDIU is remanded. The Board will defer consideration of this claim, as it is inextricably intertwined with the claim that is being remanded above. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran's records were last obtained. 2. Schedule the Veteran for an examination with an appropriate examiner to determine the nature and etiology of any current right shoulder condition. The Veteran should be interviewed, and all indicated tests and studies should be accomplished, including x-rays. All findings should be reported in detail. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should diagnose all current disabilities of the right shoulder. For each diagnosed disability, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any such disability is etiologically related to service. If no disability is diagnosed, the examiner should determine whether the Veteran has right shoulder pain that results in functional impairment, and whether it is at least as likely as not (a 50 percent probability or greater) that such functional impairment is etiologically related to service. In providing this opinion, the examiner should discuss the January 1988, December 1988, January 1989, and June 1989 service treatment records reflecting that the Veteran repeatedly sought treatment for his right shoulder, including after a December 1988 motor vehicle accident. Any opinion expressed by the VA examiner should be accompanied by a complete rationale that includes discussion of the facts of the Veteran's case and pertinent medical principles. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. Following completion of the above, readjudicate the issues on appeal, to include the issue of entitlement to a TDIU. If any requested benefit remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth Jalley, 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.