Citation Nr: 21029157 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-24 328 DATE: May 12, 2021 REMANDED Entitlement to an initial rating greater than 20 percent for left shoulder impingement syndrome is remanded. Entitlement to an initial rating greater than 20 percent for right shoulder impingement syndrome is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus, to include as secondary to a service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1962 to January 1964. In November 2019, the Board issued a decision which denied entitlement to increased ratings for left and right shoulder impingement syndrome, denied an increased right for a right wrist disorder, denied entitlement to service connection for bilateral hearing loss, and remanded a number of service connection claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board's November 2019 decision with regard to the issues of entitlement to increased ratings for right and left shoulder impingement syndrome and entitlement to service connection for bilateral hearing loss and tinnitus, and remanding the matters for additional consideration. The Court did not disturb the Board's decision denying an increased rating for a right wrist disability. 1. Entitlement to an initial rating greater than 20 percent for left shoulder impingement syndrome and entitlement to an initial rating greater than 20 percent for right shoulder impingement syndrome are remanded. In the November 2020 JMPR, the parties agreed that the March 2018 VA examination relied upon by the Board in its November 2019 decision was insufficient, because the examination report did not comply with the Court's decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and did not include the testing required under 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the claims for entitlement to increased ratings for right and left shoulder impingement syndrome are remanded to obtain a new VA examination. 2. Entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus, to include as secondary to a service-connected disability, are remanded. The November 2020 JMPR found that the February 2018 VA audiological opinion relied upon by the Board in its November 2019 decision failed to take into consideration the Veteran's lay statements of continuity found in the record. In that respect, the JMPR noted that a 2017 private medical statement submitted by the Veteran in support of his claim noted that the Veteran reported experiencing hearing loss and tinnitus beginning after exposure to loud noises, and continuously since his military service. Because the February 2018 VA opinion's rationale cited medical literature for the proposition that hearing loss occurs immediately after acoustic trauma rather than gradually, the Veteran's lay statements of continuity of symptoms from service contradict the conclusion offered by the February 2018 VA examiner. For these reasons, a new VA examination is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected right and left shoulder disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. Range of motion of the joints should be reported in degrees, noting by comparison the normal range of motion. The examiner should also test and report the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If there is pain on range of motion, the examiner must state at which point pain began. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time, and provide estimated range of motion findings under these circumstances. To the extent possible, the examiner should identify any symptoms and functional impairments due the joint disabilities alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Provide the Veteran with a VA examination by an appropriate clinician to determine the etiology of his bilateral hearing loss and tinnitus. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's bilateral hearing loss and/or tinnitus were caused or incurred as a result of the Veteran's active duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran's lay statements regarding in-service and post-service continuity of symptomatology. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.