Citation Nr: 21031667 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-06 217 DATE: May 24, 2021 ORDER Entitlement to a rating higher than 20 percent for chronic right shoulder strain is denied. Service connection for bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's chronic right shoulder strain was manifested by painful motion. The evidence does not show that the motion of the right arm was limited midway between the side and shoulder level. 2. The Veteran's bilateral hearing loss disability was not caused by service, was not manifested to a compensable degree within one year of discharge, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria a rating in excess of 20 percent for residuals of a right clavicle fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5201. 2. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1978 to August 1981. He also served in the National Guard from 1985 to 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Novembe4r 2014 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). Most recently, this issue was before the Board in March 2020. At that time, the Board remanded the claims for additional evidentiary development, specifically updated examinations. As will be discussed in more detail below, the Board finds that there has been substantial compliance with the remand directives from March 2020 regarding the claim for service connection for hearing loss and the increased rating claim for the right shoulder disability. See Stegall v. West, 11 Vet. Appl 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38C.F.R. §4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38C.F.R. §4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38C.F.R. §4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28Vet. App.158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38C.F.R. §4.40 and §4.45 must be considered. DeLuca v. Brown, 8Vet. App.202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10Vet. App.80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by §4.40 and §4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App.32, 43 (2011). The Court recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29Vet. App.26 (2017). Additionally, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board notes that, effective February 7, 2021, the applicable rating criteria for shoulder disabilities were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The final rule did not specifically permit retroactivity of the changes. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board will consider all applicable criteria in evaluating the Veteran's claims. Right Shoulder Strain The Veteran's right shoulder/clavicle disability is current rated 20 percent disabling under 38 C.F.R. § 5201. Under Diagnostic Code 5201 the major (dominant) shoulder is rated as follows: limitation of motion to shoulder level (i.e. 90 degrees) warrants a 20 percent rating; motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion) warrants a 30 percent rating; and motion limited to 25 degrees or less from the side is rated at 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board observes that recent revisions to the criteria of DC 5201 effective February 7, 2021 clarify that prior regulatory references to motion restricted midway between side and shoulder equates to flexion and/or abduction limited to 45 degrees, and that motion restricted at shoulder level equates to flexion and/or abduction limited to 90 degrees. 85 Fed. Reg. 76453 (Nov. 30, 2020). These are clarifications of range of motion limitations pictorially described in PLATE I in effect prior to February 7, 2021. See 38 C.F.R. § 4.71a, PLATE I (in effect prior to February 7, 2021). See also 82 Fed. Reg. 35719, 35722 (Aug. 1, 2017) (noting that the regulatory change simply clarified the specific ranges of motion as limitations to ensure rating personnel consistently apply these criteria). The Board finds that these are non-substantive changes which do not require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Turning to the facts of the case, the Veteran filed an increased rating claim in April 2014. In contemporaneous treatment records, the Veteran described periodic right shoulder pain and tenderness. At times, he demonstrated full range of motion in his shoulder; however, there were instances when his range of motion was limited due to pain. He used pain medication as needed. See VA Treatment Records dated April 2013 to April 2014. At the November 2014 VA examination, the Veteran described experiencing progressive right shoulder pain. He stated the pain was constant in frequency, which he rated 9/10 in severity. His pain level was aggravated with overhead lifting, but he was able to tolerate lifting up to 20 pounds. His treatment included physical therapy, pain medication and steroid injections. The Veteran denied experiencing flare ups or any functional loss. Range of motion testing revealed flexion to 90 degrees and abduction to 75 degrees. There was no evidence of crepitus or pain with weight bearing and although pain was noted on range of motion testing, such pain did not result in or cause functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or range of motion. The examiner also found that symptoms such as pain or weakness did not significantly limit functional ability either during flare ups or with repeated use over time. There was no reduction in muscle strength nor was there evidence of muscle atrophy. There was no evidence of shoulder instability, dislocation, or labral pathology nor was there any indication of a clavicle, scapula, AC joint, or sternoclavicular joint condition. In subsequent treatment records, the Veteran reported continued non-radiating pain of the right shoulder. Range of motion remained limited. His treatment included physical therapy, steroid injections, and pain medications as needed. Most recently, at the June 2020 VA examination, the Veteran reported continued chronic pain in the right shoulder. His pain was aggravated with lifting, pushing, and pulling. His treatment included daily pain medication and periodic steroid injections. The Veteran stated he had flare ups several times per year, each of which lasted one to two days. In terms of functional impairment, the Veteran's pain made his job difficult. Range of motion testing revealed flexion to 120 degrees and abduction to 105 degrees. The examiner noted that decreased external rotation range of motion interfered with his ability to lift, push, and pull. In addition, pain on the examination caused functional loss. The Veteran was unable to perform repetitive use testing with at least three repetitions due to his "fear of pain." However, based on the Veteran's statements, the examiner opined that with repeated use over time and during flare ups, the Veteran's right shoulder flexion was additionally limited to 110 degrees and abduction was additionally limited to 100 degrees due to pain. The examiner also observed less movement than normal and weakened movement attributable to the right shoulder disability. The examiner found a slight reduction in muscle strength; however, the reduction unrelated to his service-connected condition. Although the examiner noted a history of mechanical symptoms, there was no evidence of recurrent dislocation nor did he manifest any impairment to the scapula or clavicle other than arthritis. Based on the objective medical evidence, the Board finds that a rating higher than 20 percent is not warranted for the right shoulder/clavicle disability. Notably, the Veteran's current 20 percent rating is indicative of flexion of the right arm at shoulder level. Recent regulation clarifies that motion restricted at shoulder level equates to flexion and/or abduction limited to 90 degrees. 85 Fed. Reg. 76453 (Nov. 30, 2020). In order to establish a higher rating, there must be evidence of limitation of motion midway between the side and shoulder level, meaning flexion and/or abduction limited to 45 degrees. Here, the Board finds that the evidence fails to establish limitation of motion midway between side and shoulder level. There is no ankylosis present; therefore, the shoulder joint is mobile. In addition, the Veteran's flexion, at worst, was limited to 75 degrees in abduction. The most recent examination in June 2020, which was responsive to the criteria established in Corriea and Sharp, indicates that even with repetitive use over time and during flare ups, the Veteran's right shoulder was not limited to midway between his side and shoulder level. Based on the objective medical evidence, the Veteran's limitation of motion of the right arm does not more nearly approximate that which is contemplated by a higher 30 percent rating. The Board recognizes Diagnostic Code 5203, which establishes the rating criteria for a clavicle disability. In order to receive a compensable rating under Diagnostic Code 5203, there must be either nonunion or dislocation of the clavicle, which is not present in this case. The Board has also reviewed the Veteran's treatment records. During the appeal period, physicians have noted the Veteran's joint pain in his right shoulder region when noting his medical history. However, the Board finds that the symptoms noted in the Veteran's medical treatment records, to include limitation in motion, are adequately contemplated by the currently assigned 20 percent rating. In sum, the Board finds that a rating higher than 20 percent is not warranted for the Veteran's right clavicle/shoulder disability. The claim is denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. VA considers sensorineural hearing loss an organic disease of the nervous system, which is listed as a chronic disease under 38 C.F.R. § 3.309(a). As an alternative to the nexus requirement, service connection for chronic disabilities may be established through a showing of "continuity of symptomatology" since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Bilateral Hearing Loss The Veteran is seeking service connection for bilateral hearing loss. The threshold for normal hearing is from 0 to 20 decibels, and pure tone thresholds above 20 decibels may demonstrate hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). However, hearing loss at this level does not equate as being a "disability" for VA purposes. McKinney, 28 Vet. App. at 24-25. Specifically, hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). 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 Board notes that service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss are met, and there is a medically sound basis to attribute post service hearing loss to service, irrespective of any intercurrent causes. See Hensley. Therefore, when the testing results at separation from service do not meet the requirements for hearing loss under C.F.R. § 3.385, service connection may still be established by submitting evidence that the current disability is causally related to service. The question for the Board is whether the Veteran's hearing loss was manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. Turning to the facts of the case, the Veteran's service treatment records are silent for any complaints, treatments, or manifestations of a hearing loss disability pursuant to 38 C.F.R. § 3.385. Notably, the Veteran's military personnel records show that his MOS is listed as flight operations coordinator and has been noted as being "highly probable" for noise exposure. Therefore, the Board concedes acoustic trauma, and finds that the element of an in-service injury has been met. Post-service, the Veteran first reported noticing some loss in his hearing acuity in October 2009. Contemporaneous and subsequent treatment records indicate that the Veteran was afforded periodic audiograms to assess his hearing acuity. In 2010, audiologists found that his hearing was within normal limits, despite the Veteran's reports of muffled hearing on a daily basis. In an August 2011 audiogram, the Veteran's hearing was within normal limits throughout 2000 Hz, sloping to a mild high frequency hearing loss at the higher thresholds. At the November 2014 VA examination, the Veteran reported that he had difficulty hearing instructions at work. Upon examination, the Veteran's puretone thresholds did not meet the criteria to constitute a hearing loss disability under 38 C.F.R. § 3.385. However, the examiner did note that the Veteran manifested a decrease in hearing acuity over the years and found that his hearing impairment was less likely related to service and more likely related to his post-service occupational noise exposure. In so finding, the examiner noted that the Veteran's work as a laborer involved exposure to power tools, jack hammers, and compressors for 20 years without the consistent use of hearing protection. Most recently, at the June 2020 VA examination, the Veteran detailed his history of noise exposure. Specifically, described working on the flight lines and being exposed to fixed wing aircraft engines during service. He also indicated that after service, he worked as a general laborer for over 10 years, using jackhammers, packers, and concrete saws. Currently, the Veteran reported having difficulty understanding conversation. Upon examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 35 45 LEFT 25 25 20 30 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Upon review of the record and examination of the Veteran, the examiner found that the Veteran's bilateral hearing loss disability was less likely than not incurred in or otherwise caused by or related to service. In so finding, the examiner noted that the Veteran first reported onset of decrease in hearing acuity about 11 years after separation. Moreover, after separation from service, the Veteran experienced significant occupational noise exposure. Ultimately, the examiner cited medical literature and found that the Veteran's current hearing loss was less likely than not related to military noise exposure. Upon consideration of the evidence, the Board finds that service connection for a bilateral hearing loss disability is not warranted. The preponderance of the evidence establishes that the Veteran's bilateral hearing loss disability did not manifest within one year of discharge from service and is not causally or etiologically related to service. The most probative evidence consists of the in-service audiometric results which reflect puretone thresholds that did not meet the criteria for a disability at separation, or even abnormal hearing per Hensley and the June 2020 VA examination and opinion, which associated the Veteran's hearing loss with his post-service civil occupational noise exposure. Here, the examiner's opinion was based on sound medical principles applied to the specific facts of the Veteran's case, to include his history of noise exposure. Given the objective basis of the opinion, the Board finds the June 2020 nexus opinion to be highly probative as to the issue of etiology. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning). The only remaining evidence capable of substantiating the claim consists of the Veteran's own perception to decreased hearing acuity since service and his opinion as to a causal relationship between hearing loss and in-service noise exposure. With respect to causation, the Veteran is not shown to possess the requisite medical training and expertise to speak to the causal relationship between hearing loss and in-service noise exposure. In addition, the Veteran's lay opinion does not consider the totality of his history of noise exposure, to include his post-service occupational noise exposure. The Board places greater probative weight on the objective audiometric testing upon service separation which showed normal hearing, even under Hensley standards, and the June 2020 VA examination and opinion interpreting the entirety of the record. With respect to establishing service connection based upon continuity under 38 C.F.R. § 3.303(b) or on a presumptive basis as being manifest to a compensable degree within one year of service discharge, the Veteran's perception of decreased hearing acuity since service does not adequately support a finding of actual sensorineural hearing loss disability being first manifested in service or within one year of service discharge as the existence of a "disability" is specifically defined at 38 C.F.R. § 3.385 in terms of specific levels of tone threshold perceptions and speech recognition which is beyond lay competence to measure. McKinney, 28 Vet. App. at 24-5. In short, the Veteran's recollections of decreased hearing acuity since service is not capable of showing it rose to the level of a "disability" for VA purposes in service, or to a ratable level of disability within one year of service discharge. In sum, based on the totality of the evidence, with the preponderance of it being against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Service Connection for Acquired Psychiatric Disorder This issue was previously before the Board in March 2020, at which time it was remanded for additional evidentiary development. Specifically, the Board sought clarification as to whether the Veteran's acquired psychiatric disorder, namely depression, was caused or aggravated by his right shoulder disability. The August 2020 VA examination is responsive to the March 2020 remand instructions. The August 2020 VA examiner diagnosed PTSD. In regard to nexus, the examiner found that the Veteran did not have an acquired psychiatric disorder that is at least as likely as not incurred in or caused by depression in service. In so finding, the examiner explained that the records did not suggest a psychiatric disorder prior to service; thus, the claimed condition was not aggravated beyond its natural progression or aggravated by his service-connected right shoulder disability. However, the examiner opined that the Veteran did have PTSD that was at least as likely as ot incurred in or caused by the Veteran's described trauma. The Board finds that remand is required to obtain an addendum opinion, as the August 2020 nexus opinion is inadequate for several reasons. First, the Board finds that the positive PTSD nexus opinion is problematic since it was based on an unverified stressor. Furthermore, the examiner's opinion is not responsive to the remand instructions as the Board remand's request does not mention and the evidence of record does not suggest that the Veteran was seeking service connection based on aggravation of a pre-existing disability. Lastly, the August 2020 opinion directly contradicts the objective medical evidence of record. While the August 2020 VA examiner diagnosed the Veteran with PTSD, the remaining objective evidence of record establishes that the Veteran also has depression. Given the inadequacy of the August 2020 examination and nexus opinion, remand is required to afford the Veteran another examination and obtain another nexus opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician other than the August 2020 VA examiner to determine the nature and etiology of any acquired psychiatric disorder, to include depression. The examiner should determine whether any diagnosed acquired psychiatric disorder is at least as likely as not (1) incurred in or otherwise etiologically related to service; (2) proximately due to a service-connected disability; or (3) aggravated (a discernable increase in disability) by a service-connected disability. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.