Citation Nr: 23023213 Decision Date: 04/20/23 Archive Date: 04/20/23 DOCKET NO. 19-11 447 DATE: April 20, 2023 ORDER An initial compensable rating for hearing loss is denied. Service connection for low back disability is denied. Service connection for a left shoulder arthritis is denied. Service connection for a right shoulder arthritis is denied. REMANDED Entitlement to service connection for a left ankle condition with strain is remanded. FINDINGS OF FACT 1. The Veteran's puretone threshold averages and speech discrimination scores do not result in a compensable rating for hearing loss. 2. The evidence weighs persuasively against finding the current low back disabilities are related to service. 3. The evidence weighs persuasively against finding left shoulder arthritis is related to service or caused or aggravated by the service-connected cervical spine disability. 4. The evidence weighs persuasively against finding right shoulder arthritis is related to service or caused or aggravated by the service-connected cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85-4.86, Diagnostic Code (DC) 6100. 2. The criteria for service connection for low back disability have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for a left shoulder arthritis have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for a right shoulder arthritis have not been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1977 to December 1988. 1. An initial compensable rating for hearing loss Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of puretone audiometry tests. See 38 C.F.R. §§ 4.85-4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a puretone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. All applicable tests include valid puretone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85 and 4.86. Under Table VI, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average puretone threshold, or the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. The Board reviewed the evidence and finds the Veteran's hearing loss does not meet the criteria for a compensable rating. See 38 C.F.R. § 4.85. The record contains three VA audiological examinations with puretone threshold measurements and Maryland CNC speech discrimination scores. In February 2018, the Veteran was measured with 100 percent speech discrimination and the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Average RIGHT 10 10 5 55 45 28.75 LEFT 10 10 20 60 60 37.5 During the May 2018 examination, the Veteran again had 100 percent speech discrimination scores in both ears and the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Average RIGHT 10 10 15 55 50 32 LEFT 15 20 20 60 45 34 During the February 2022 Board hearing, the Veteran reported his hearing had gotten worse, but he did not wear hearing aids. The November 2022 examiner found the Veteran experienced 96 percent speech discrimination in the right ear, 88 percent in the left ear, and the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Average RIGHT 15 10 10 55 50 31.25 LEFT 10 10 25 55 55 36.25 The November 2022 examination revealed the worst speech discrimination scores, so the Board will focus the analysis on the results of that examination. The right ear 31.25 decibel average combines with the 96 percent speech discrimination score for a Roman Numeral I designation, and the left ear 36.25 decibel average combines with the 88 percent speech discrimination score for a Roman Numeral II designation in Table VI. A Roman Numeral II and a Roman Numeral I yield a 0, noncompensable rating in Table VII. The results of the other examinations would also yield a noncompensable rating when entered into Tables VI and VII. Therefore, the evidence that addresses the rating criteria does not warrant a compensable rating for the Veteran's hearing loss. The Board has considered the Veteran's statements that he has difficulty hearing, including the need to read lips and ask others to repeat themselves. He is competent to report these symptoms, and the Board sees no reason to doubt his credibility in reporting these hearing loss symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. The Board finds the competent medical evidence is more probative and outweighs the lay subjective reports of a more severe degree of disability, because they were provided by personnel with specialized training in hearing loss and directly address the rating criteria for the Veteran's hearing loss. Additionally, the rating schedule has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366, 368-69 (2017) (holding that "the rating criteria for hearing loss contemplate functional effects of decreased hearing and difficulty understanding speech in an everyday work environment"-which "are precisely the effects that VA's audiometric tests are designed to measure"). Thus, the Veteran's hearing loss does not satisfy the criteria for a compensable rating. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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" - also known as the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or worsened beyond its natural progression (aggravated) by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Service connection for low back disability Based on the evidence, the Board finds the criteria for service connection for a low back disability have not been met. 38 C.F.R. § 3.303. First, the evidence shows a current disability. The January 2018 VA examiner diagnosed degenerative arthritis of the spine and lumbar degenerative disc disease. The May 2018 examiner also diagnosed degenerative disc disease and mild facet arthropathy of the lumbar spine. Therefore, the evidence establishes the first element of service connection. See Holton, 557 F.3d at 1366. Next, the evidence shows in-service complaints of back pain. In an October 2017 statement and May 2018 examination, the Veteran reported injuring the back when loading and unloading rounds and heavy gunnery equipment on and off tanks in Germany. During the Board hearing, the Veteran described an incident where he slipped and fell backwards off a tank, hurting his mid back. Service treatment records from two occasions in May 1983 show complaints of lower back pain for five weeks. Additionally, service treatment records show complaints of pain in the upper back area and recurrent, mechanical low back pain in October 1983. Accordingly, the evidence also satisfies the second, in-service injury element of service connection. See Holton, 557 F.3d at 1366. Finally, however, the evidence weighs persuasively against finding the Veteran's current low back disabilities are related to service. During the May 2018 examination, the Veteran reported the back pain progressing since service. The December 2022 VA examiner concluded that the Veteran's current lumbar degenerative disc disease, arthritis, and mild facet arthropathy of the lumbar spine are less likely than not related to service, including the fall from a tank, lifting heavy ammunition, and parachute jumps. The examiner explained that the etiology of spine osteoarthritis is likely secondary to its multifactorial pathogenesis, including sex, ethnicity differences, age, physical activity, and work-related habits. The examiner noted that the most crucial associated risk factor for osteoarthritis among many studies is age, and 67 percent of patients between the ages of 45 and 64 and 89 percent of patients over 65 had evidence of facet joint arthropathy on imaging. The examiner noted the Veteran did not seek care for his back pain for approximately 30 years after he was seen in service in 1983 but reported experiencing severe daily flares of back pain in 2018. The examiner further noted the Veteran reported working in car sales and being a shuttle driver, and both jobs would require prolonged and/or repetitive sitting, standing, walking and transitioning between these actions, which are often painful motions for people with low back pain. The examiner surmised that a person who was experiencing daily severe pain, exacerbated by basic functions would have sought medical care. Additionally, the examiner noted the Veteran is a 66-year-old male with a BMI (body mass index) of 38.7 that borders extreme obesity. The examiner concluded that given the lack of continuous pain to the degree requiring medical attention and the available research, the Veteran's back condition can be attributed to post-separation occupational, recreational, or accidental injury/illness, as well as the risk factors of his gender, obesity, and age. The Board finds the December 2022 examiner's opinion highly probative, because the examiner did not simply dismiss the Veteran's lay statements of continuous pain but explained that the level of pain caused by the current disabilities would have reasonably required medical care in the intervening years. The December 2022 examiner also cited medical research supporting the conclusion that the Veteran's current disabilities were more likely related to age, weight, and post-service work activities. The December 2022 examiner's opinion is not refuted by any competent, medical evidence of record. The Board previously found the January 2018 and May 2018 opinions included inadequate rationale and finds no additional analysis of those opinions is necessary. While the Board has considered the Veteran reports of ongoing back pain, the etiology of complex musculoskeletal disabilities, like degenerative disc disease and arthritis, requires a level of medical training and competency the Veteran does not possess. See Jandreau, 492 F.3d at 1377. The Board is further persuaded by the December 2022 examiner's opinion that the pain described by the Veteran as continuing since service should not be considered continuity of symptomatology of lumbar spine arthritis, because the level of pain expected of such a diagnosis along with the physical requirements of the Veteran's post-service occupation would reasonably require medical treatment. Moreover, the Veteran was seen for other musculoskeletal problems in the early 2000s without any notation of back pain or arthritis; rather, in January 2001, the Veteran denied back pain. The Board finds the examiner's explanation reasonable and persuasive that the Veteran's current back disabilities are due to age, weight, and occupational activities. As the evidence weighs persuasively against a nexus to service, service connection for a current low back disability is not warranted. 2. Service connection for a left shoulder arthritis 3. Service connection for a right shoulder arthritis After reviewing the record, the Board finds the criteria for service connection for left and right shoulder disabilities have not been met. See 38 C.F.R. § 3.303. The evidence shows current shoulder disabilities. The January 2018 VA examiner diagnosed bilateral shoulder arthritis. Current VA treatment records show the Veteran was undergoing physical therapy for the right shoulder. Therefore, the evidence shows a current disability to satisfy the first element of service connection. See Holton, 557 F.3d at 1366. The evidence also shows in-service activities impacting the shoulders. In an October 2017 statement, the Veteran reported loading and unloading rounds on and off a tank injured his back, neck, and shoulder. During the January 2018 examination, the Veteran reported being seen for both shoulders in service. In his September 2018 notice of disagreement, the Veteran asserted that the left and right shoulders were injured during repeated airborne jumps. During the February 2022 hearing, the Veteran reported hurting his shoulders when he fell backwards off a tank in May or June of 1983. The Veteran's DD Form 214 shows he earned the parachute badge, which confirms his involvement in parachute jumps. The Veteran complained of left arm strain in August 1978 treatment. An October 1983 service treatment record notes tenderness in the upper back and shoulder area along with lower neck pain. In November 1984, the Veteran reported pain in the left shoulder and neck for three days, which was assessed as possible muscle spasms. The evidence shows left shoulder pain in service treatment records, and the record supports the Veteran's assertions that he participated in activities that injured or caused symptoms in his shoulders. Thus, the second element of service connection is established. See Holton, 557 F.3d at 1366. However, the evidence weighs persuasively against finding a relationship between the current shoulder arthritis and service. The December 2022 VA examiner concluded that the Veteran's right shoulder disability is less likely than not due to service. The examiner noted that when the Veteran was seen for shoulder pain in service, the reports were for the left shoulder, not the right. The examiner further explained that the Veteran's report of the in-service injury from the tank fall, described as occurring in the center of the back, posterior neck area, is not an area that would cause traumatic injury to the shoulder and result in development of acute arthritis. The examiner also noted that there has been no radiographic evidence of post-traumatic arthritis to suggest the Veteran sustained any acute shoulder injuries. Rather, the examiner explained that shoulder arthritis and osteoarthritis, in general, are usually the result of gradual wear and tear of the cartilage related to aging. The examiner found there was insufficient evidence to date the current disability back to the Veteran's term of service, and the current right shoulder arthritis was less likely than not related to an in-service fall from a tank or repeated parachute jumps. The December 2022 examiner also found the Veteran's left shoulder arthritis was less likely than not related to service. The examiner considered the Veteran's reports of ongoing left shoulder pain and found the evidence supported that these symptoms were due to cervical radiculopathy rather than arthritis. The examiner noted that the neurosurgeon who performed the cervical fusion in 2019 noted considerable stenosis and cord compression that may have been responsible for the numbness on the Veteran's left side and was certainly responsible for his neck and shoulder pain. The examiner further reasoned that the Veteran reported a resolution of left shoulder pain after the 2019 neck surgery, which supports the finding that the pain was due to cervical radiculopathy and very unlikely due to organic shoulder pathology such as arthritis. The examiner further explained that the multiple instances of left shoulder pain in service were found to be soft tissue injuries or strain and the Veteran's report of the in-service tank injury and radiographic evidence were inconsistent with the development of post-traumatic arthritis. The examiner concluded that the Veteran's left shoulder arthritis can be attributed to a post-service occupational, recreational, or accidental injury and less likely than not related to in-service fall from a tank or repeated parachute jumps. The Board has considered the Veteran's reports of ongoing shoulder pain but finds the other evidence weighs persuasively against service connection. Specifically, the Board finds the December 2022 examiner's opinion highly probative in that the examiner considered the Veteran's reports of continuous left shoulder pain and explained why these were more consistent with cervical radiculopathy than arthritic pain. The Board notes that the examiner's explanation on the etiology of arthritis is consistent with an October 2005 x-ray report noting no acute fracture or dislocation of the left shoulder and making no mention of arthritis. Given the explanation as to etiology of the Veteran's left shoulder pain and lack of finding of arthritis in 2005, the Board concludes that continuity of symptomatology for left shoulder arthritis cannot be established. The Board further notes that there are inconsistent reports between the Veteran's service treatment records, statements made to VA earlier in the claim process, and statements made to VA later in the claim process as to whether the Veteran experienced right shoulder pain since service. In that regard, the Board finds the Veteran's reports lack the credibility to support a finding of continuity of symptomatology for right shoulder arthritis. Finally, the Board is persuaded by the examiner's explanation that the report of in-service injury to the shoulders and radiographic evidence of arthritis in the shoulders is not consistent with post-traumatic arthritis that could be attributable to service. The Board previously found the January 2018 opinion included inadequate rationale and concludes that further analysis of this opinion would not be helpful. Based on the Veteran's reports of shoulder symptoms coinciding with neck injury and symptoms, the Board ordered an opinion on secondary service connection. The December 2022 examiner found the left and right shoulder arthritis was less likely than not proximately due to or aggravated by the service-connected cervical spine condition. The examiner explained that the radiographic evidence suggests the Veteran has mild AC joint arthritis that is likely asymptomatic and has not been aggravated. The examiner discussed the evidence showing the Veteran's reported left shoulder pain was most likely attributable to cervical radiculopathy rather than arthritis and that the reported right shoulder pain appeared to be unaffected by cervical surgery and separate from the cervical disability. The examiner explained that shoulder arthritis usually results from gradual wear and tear and typically develops in stages. The examiner further noted arthritic conditions, aside from systemic conditions like rheumatoid arthritis, are independent conditions generally due to the wear and tear of the affected joint and there is no direct correlation between arthritis in one joint and another. The examiner concluded that the Veteran's left and right shoulder arthritis were less likely than not caused or aggravated by the service-connected cervical spine condition. The Board finds the December 2022 examiner's opinions on secondary service connection also highly probative as the examiner explained that an arthritic condition in one joint, such as the neck, would not directly correlate to arthritis in another joint, such as the shoulder, and that the Veteran has mild arthritis, which does not support aggravation from the cervical spine disability. The Board is further persuaded by the cited medical research that shoulder arthritis usually results and progresses from wear and tear of the cartilage of the shoulder joint, not from arthritis in another joint. The Board finds that evidence supports the Veteran's left and right shoulder arthritis are separate and unaffected by the service-connected cervical spine disability. The Board notes that the Veteran already receives service-connected compensation for left upper extremity radiculopathy, separate from this claim of service connection for a musculoskeletal disability. In conclusion, the Board finds the evidence weighs persuasively against finding the left or right shoulder arthritis is related to service or service-connected cervical spine disability. Service connection cannot be granted. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle condition with strain is remanded. The Board finds remand is again needed to obtain an adequate medical opinion for the left ankle. Like the prior examiners, the December 2022 examiner provided a negative opinion on service connection and relied on the lack of chronicity of care for the ankle after service but did not consider that the Veteran testified to having the ankle treated for years but those medical records were no longer available. See February 2022 Board hearing. Another opinion is needed that adequately considers the Veteran's reports of ongoing ankle problems and having treatment for the ankle for years prior to seeking disability benefits and does not rely solely on the lack of contemporaneous treatment records to base a negative conclusion. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). The matters are REMANDED for the following action: Request a medical opinion for the left ankle. The medical expert should review the claims file and address whether the current pain, limitation of motion, and strain in the Veteran's left ankle are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to the in-service ankle strain/sprain and repeated parachutes jumps and marching in service. The expert should consider all relevant lay and medical evidence, including the Veteran's report that the in-service injury affected the way he walked and caused continuous problems in the foot and ankle and that he sought treatment for the ankle for years prior to filing for disability but those records are no longer available. The expert should not discount the Veteran's reports solely due to a lack of contemporaneous treatment records. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.