Citation Nr: 21031336 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 19-31 180 DATE: May 21, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for left shoulder degenerative arthritis is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The claim for service connection for a left shoulder disability was originally denied by a March 2004 rating decision. The Veteran did not appeal that decision and it became final. 2. Evidence received since the March 2004 rating decision related to the claim for service connection for a left shoulder disability is new and it is also material as it relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran's service treatment records establish that he experienced left shoulder dislocations and pain during service which has continued since that time. 4. The Veteran's tinnitus is at least as likely as not related to in-service noise exposure. 5. Resolving all reasonable doubt in his favor, the Veteran has a PTSD diagnosis that meets the DSM-V criteria that was at least as likely as not caused by his in-service stressors. CONCLUSIONS OF LAW 1. The March 2004 rating decision denying the claim for service connection for a left shoulder disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.1103. 2. New and material evidence having been received, the claim for service connection for a left shoulder disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for left shoulder degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.303, 3.304(f)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from February 1982 to July 1982, from October 1983 to September 1987, and again from October 1987 to August 2003. He testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing in May 2021. 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a left shoulder disability. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Initially, the Board notes that the Veteran's electronic claims file, on first glance, suggests that new service treatment records were added since the March 2004 rating decision which originally denied the Veteran's claim for service connection for a left shoulder disability. Under 38 C.F.R. § 3.156(c)(1), "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." However, in this instance, the RO specifically referenced the service treatment records in question. The March 2004 rating decision states: Service medical records from August 1981, through March 18, 2003, indicated that you were seen once for left shoulder pain and bursitis and there was a notation on your re-enlistment physical in 1987 of a right shoulder dislocation. Because these records were associated with the claims file at the time of the March 2004 rating decision, the Veteran must submit new and material evidence in order to reopen his previously denied claim. The March 2004 rating decision denied the Veteran's claim on the basis that "the examiner reported there were no real residuals" and the Veteran had full range of motion of the left shoulder with "none of the range of motion exercises produc[ing] any pain." Since the March 2004 rating decision, among other things, a voluminous amount of VA treatment records have been associated with the Veteran's claims file. These records show that he has a current diagnosis of left shoulder degenerative arthritis, which causes pain and limited range of motion. This evidence is new, and it is material as it relates to an unestablished fact necessary to substantiate the Veteran's claim. As such, the claim is reopened. 2. Entitlement to service connection for left shoulder degenerative arthritis. The Veteran contends that service connection for a left shoulder disability is warranted. VA treatment records confirm a diagnosis of left shoulder degenerative arthritis. In addition, as noted above, the Veteran's service treatment records document complaints related to the left shoulder. See e.g. March 1991 Service Treatment Records (noting trapezius spasm and shoulder pain). The Veteran has also testified under oath that his left shoulder dislocated several times during service. One instance of dislocation occurred while on detachment for two weeks. He has acknowledged that he did not report the dislocation when he returned. The Board has no reason not question the Veteran's credibility and his reports regarding his left shoulder dislocation. Thus, the first and second element of service connection has been met. The questions before the Board are therefore whether the Veteran's left shoulder degenerative arthritis had its onset within one year of service and, in the alternative, whether there is a so-called "nexus" between the Veteran's left shoulder degenerative arthritis and service. On VA examination in January 2004, less than a year following service, the Veteran reported left shoulder pain and soreness. On VA examination in August 2017, the examiner noted a diagnosis of left shoulder degenerative arthritis. The Veteran had full range of motion in the right shoulder and abnormal range of motion in the left. Specifically, he had flexion to 165 degrees; abduction to 145 degrees; external rotation to 90 degrees; and internal rotation to 45 degrees. Pain was noted on examination and caused functional loss. The examiner opined that the Veteran's left shoulder degenerative joint disease was less likely than not related to service. As rationale, he explained that "there is no objective medical record evidence to indicate that the Veteran's in-service left shoulder pain/conditions did not resolve." The examiner noted that on discharge, the Veteran denied experiencing painful shoulder or swollen or painful joints. His upper extremity examination was found to be clinically normal "indicating no left shoulder pain/conditions/pathology at the time of separation." However, as noted above, within one year of separation, the Veteran reported pain in his left shoulder. Later VA treatment records confirm a diagnosis of degenerative arthritis. As such, the Board finds that the Veteran's left shoulder degenerative arthritis had its onset within one year of service and has continued since. Thus, service connection for a left shoulder degenerative arthritis is warranted. This represents a full grant of the benefit sought on appeal. 3. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "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 between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, such as tinnitus and arthritis, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. An August 2017 VA examination report confirms a diagnosis of tinnitus. Furthermore, although the Veteran's service treatment records do not document any treatment, complaints, or diagnoses related to hearing loss or tinnitus, it has already been conceded that he was exposed to acoustic trauma in service. See e.g. August 2019 Statement of the Case. Therefore, the first and second element of service connection has been met. The question before the Board therefore is whether there is a so-called "nexus" between the Veteran's tinnitus and service. There are two medical opinions of record. The August 2017 VA examiner opined that the Veteran's tinnitus was less likely than not related to service. As rationale, the examiner stated: Multiple audiograms were found in service treatment records. Entrance and exist audiograms suggested normal hearing sensitivity bilaterally. No significant threshold shifts were found. C&P audiogram suggests normal hearing sensitivity bilaterally. A previous C&P audiogram 12/19/2003 just a few months from exit also suggested normal hearing sensitivity bilaterally. There is no objective evidence of inner ear involvement such as hearing loss or significant threshold shifts during service to provide a nexus to tinnitus during active service. There are many known causes of tinnitus. The Veteran submitted a private audiological assessment in September 2019. The examiner noted that the Veteran was exposed to excessive noise levels from aircraft engines while performing his in-service job duties and was not provided consistent or adequate hearing protection. The examiner further noted that the Veteran experiences chronic and constant subjective tinnitus, which is commonly associated with hearing loss, but may be present when hearing threshold levels are normal. The examiner opined that the Veteran's tinnitus was at least as likely as not related to service. She based her opinion on the fact that the Veteran was exposed to excessive noise levels while in the military without benefit of adequate hearing protection and the Veteran's reports regarding experiencing tinnitus during service. The Board finds the September 2019 private examination report to be the most probative. The August 2017 VA examiner provided an opinion that addressed hearing loss, as opposed to tinnitus. She did not explain why a threshold shift was relevant nor did she discuss the possibility of tinnitus existing without hearing loss. This is especially relevant as the September 2019 private examiner explained that tinnitus can have its onset even when hearing threshold levels are normal. Thus, the Board finds that service connection for tinnitus is warranted. This represents a full grant of the benefit sought on appeal. 4. Entitlement to service connection for PTSD. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f)(3). The Veteran contends that service connection is warranted for PTSD. He has advanced several stressors which occurred during his 20 years of service. See e.g. January 2020 Stressor Statement. In particular, in October 2019, the Veteran submitted a buddy statement from K.B. indicating that on December 23, 1992, they were in maintenance control awaiting the last flight of the day before leaving for the Christmas holiday period. A very disturbing broadcast transmission came over the radio from a pilot operating the aircraft. He stated the aircraft was in a flat spin and that he was unable to control it. He also stated that he and the Rear Intercept Officer would have to eject from the aircraft. He then initiated the ejection process and was successful. However, the Rear Intercept Officer did not make it out of the aircraft. K.B. stated the Veteran then heard "one of the loudest, most terrifying screams one could imagine. This went on for about eight seconds." Essentially, the Veteran could audibly hear the Intercept Officer plunge to his death. Given the Veteran's extensive military experience, the Board finds no reason to question the credibility of his reported stressors. There are several private and VA examinations of record addressing the Veteran's claim for PTSD. The Veteran was afforded a VA mental disorder examination in August 2017. At that time, the examiner opined that the Veteran did not have any acquired psychiatric disorder. As rationale, the examiner explained: Veteran is reporting a low frustration tolerance and some mild emotional distress which appears related to his current lack of mobility and/or loss of ability caused by his physical difficulties. Veteran's current emotional distress fails to be at clinically significant levels at the present time. Veteran is a highly resilient individual who continues to function at a high-level with his interpersonal and occupational interactions despite his physical/medical difficulties. Veteran's CPRS notes include negative depression screens for dates of 12/19/2002; 6/27/2014; 10/15/2015 and 5/15/2017. The Veteran submitted a private medical assessment dated in March 2018. On examination, the Veteran denied any past mental health treatment but stated that his wife urged him for years to seek help for his night terrors, insomnia, and depression. The examiner, a licensed social worker, diagnosed PTSD and attributed it to the Veteran's service. In August 2018, the Veteran stated: I retired in August of 2003. Soon after that I started having nightmares about bombs blowing up killing people from Desert Storm War. I would often have flashbacks also. I feel depressed and angry because of the weapons I built. I don't know how many people I'm responsible of killing as the result of the weapons I assembled. Now days it's hard for me to stay focused at work because my mind thinks about things I did while in the military. My wife says I'm moody at home. I have been suffering with these issues for the last 13 years. I was always ashamed of this illness and thought it would go away. It has not gone away. I finally realize I need help. The Veteran submitted a private independent medical opinion dated in December 2019. Dr. C. M., a psychologist, had access to a VA PTSD Disability Benefits Questionnaire completed by another Doctor in Psychology (Dr. H. R.) in December 2019. Both examiners found that the Veteran's stressors meet criterion A (i.e. are adequate to support the diagnosis of PTSD). The reported also indicates that the Veteran's meets minimal standards for criterion B, C, D, E, and F which includes: the traumatic event is persistently reexperienced; there is persistent avoidance of stimuli associated with the trauma; there are persistent symptoms of increased arousal not present before the trauma; duration of symptoms is more than one month; and the symptoms cause clinically significant distress and impairment. After thorough examination, the examiner opined that the Veteran met the diagnostic criterion under the DSM-V for PTSD and that his PTSD was at least as likely as not related to service. The Veteran was afforded additional VA examination in June 2020. The examiner, also a psychologist, provided a diagnosis of PTSD consistent with the DSM-V criterion. The examiner found the Veteran's stressors were adequate to support a diagnosis of PTSD. The examination report originally indicated that an opinion could not be provided as "e-file was not reviewed as it was not available at the time of this exam." However, the examiner provided a supplemental opinion in June 2020. He ultimately opined that the Veteran's PTSD was less likely than not related to service, essentially because the Veteran did not endorse psychiatric symptoms on discharge. The March 2018, December 2019, and June 2020 private and VA examination reports all confirm a diagnosis of PTSD. As such, the first element of service connection has been met. In addition, all examination reports indicate that the Veteran's stressor was sufficient to support a diagnosis of PTSD. His stressor has been corroborated by a fellow sailor who served with the Veteran and also witnessed the event. Thus, the question before the Board is whether the medical evidence sufficiently establishes a link between the Veteran's current symptoms and his in-service stressor. In this instance, the Board finds no reason to weigh one medical opinion over the other. The private examiners opined that the Veteran's PTSD was at least as likely as not related to service, based on his reports of current symptoms as well as his reports regarding experiencing those symptoms since service. The Veteran has been clear that he did not seek treatment immediately after service because he felt his symptoms would go away. The VA examiner essentially indicated that had the Veteran's PTSD been caused by service, he would have endorsed symptoms on discharge or soon after service. The evidence is in at least relative equipoise. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. This represents a full grant of the benefit sought on appeal. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Martha R. Luboch, 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.