Citation Nr: 1334954 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-17 688 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to total disability based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from March 1942 to October 1945. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision. In June 2011, the Veteran testified in at a hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file. In November 2011, the Board remanded the Veteran's claim. Unfortunately, the medical opinion that was obtained was found to be inadequate for rating purposes. The Board remanded the claim again in December 2012 to obtain a second VA examination, which is adequate. Therefore, the directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. In doing so, it was noted that a number of VA treatment records were posted to the virtual file in August 2013. There was no supplemental statement of the case issued following the posting of the records and the Veteran has not explicitly waived AOJ review of these records. However, a review of the posted records reveals that they are entirely duplicative of evidence already in the file (that is, a few records confirm the diagnosis of hearing loss but do not show any separate audiometric testing having been conducted, and there is no statement as to the etiology of the Veteran's bilateral hearing loss ), or they do not address either the Veteran's hearing loss or employability. As such, a waiver is not required and the Veteran is not prejudiced by the Board's proceeding with the adjudication of his claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Symptoms of hearing loss were not chronic in service. 2. Symptoms of hearing loss were not continuous since service. 3. Hearing loss did not manifest to a compensable degree within one year of service separation. 4. Current hearing loss is not causally or etiologically related to service. 5. The medical and other evidence of record does not demonstrate that the Veteran's service-connected psychiatric disability, alone, renders him unable to secure or follow a substantially gainful occupation, so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in or aggravated by service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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.A. § 1110; 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The disorder at issue, namely hearing loss, if sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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, 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 provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran maintains that he was exposed to acoustic trauma, such as light arms fire and artillery while training for the infantry. He is now seeking service connection for his currently diagnosed bilateral hearing loss. The Veteran served in the Navy during World War II and his reports of military noise exposure appear to be consistent with the places, types, and circumstances of his service. 38 U.S.C.A. § 1154(a). As such, the Veteran's reported noise exposure is conceded. However, a current hearing disability and military noise exposure alone is insufficient to warrant service connection. Rather, it must be shown that the noise exposure actually caused the hearing loss. This may be done by the use of either a statutory presumption or by the use of competent evidence. Turing first to presumptive service connection, the weight of the evidence shows that symptoms of sensorineural hearing loss were not chronic during the Veteran's service. A review of his Veteran's service treatment records does not reveal any complaints of, or treatment for, hearing loss; and no audiometric testing was conducted during service. The only hearing testing that was administered was the whispered voice test, which was normal at both enlistment and separation. As such, hearing loss was not diagnosed during the Veteran's time in service. No argument has been advanced to the contrary. Following service, the Veteran's hearing loss was first diagnosed in 2006, approximately 60 years after he separated from service; and the Veteran's specifically denied ever receiving any private hearing treatment at his Board hearing. Not only was hearing loss not diagnosed for many decades after separation, but the Veteran stated at his 2006 VA treatment session that he had noticed diminished hearing acuity for approximately 10 years, placing the onset of symptoms approximately 50 years after separation. As such, the evidence of record clearly does not show hearing loss being diagnosed either during service or within a year of service. In June 2011, the Veteran testified at a hearing before the Board, that he had only begun receiving hearing treatment within the previous 10 years; that is, many years after service. The evidence also does not show that symptoms which began in service were continuous since service. As noted, the Veteran himself acknowledged that he had only perceived diminished hearing acuity since approximately 1996. Therefore, he has not actually asserted that his bilateral hearing loss began during service. As such, the 38 C.F.R. § 3.303(b) presumptions have not been met. Nevertheless, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. Moreover, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Here, the Veteran was informed of the necessity to submit evidence showing a relationship between any claimed hearing loss and his period of service, but he has not obtained or submitted such evidence tending to show a relationship between current hearing loss and noise exposure during service. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. As such, the Veteran is considered competent to describe his perception of diminished hearing acuity. However, the Veteran is not competent to offer an opinion concerning either the etiology of his sensorineural hearing loss as such determinations require both objective audiometric and speech recognition testing, which the Veteran cannot perform on himself. While the Veteran was stationed in a hospital during part of his military service, the fact remains that he is not an audiologist, and has not suggested that he has ever received any hearing loss training. As such, the Board concludes that the question of the etiology of the Veteran's bilateral hearing loss disability is not amenable to lay observation alone and is too complex to be addressed by the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is worth pointing out that the Veteran does not appear to have ever actually alleged that his hearing loss was caused by military noise exposure, beyond his filing a claim for service connection. The Veteran did submit a medical article from a VA doctor which suggested that noise exposure in the military could cause hearing loss. Such a possibility however is not in dispute. A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). In the present case, the treatise evidence submitted by the Veteran is not accompanied by the opinion of any medical expert which would link the Veteran's bilateral hearing loss to his military noise exposure. Because the subject of the article is not linked to the specific facts of the Veteran's case, the submission of the article alone is insufficient to establish the required medical nexus in this case. Nevertheless, because it was recognized that the Veteran had military noise exposure and that he currently had hearing loss, a VA examination was ordered. The Veteran was provided with a VA audiological examination in December 2011 at which he reported serving in the Navy for three years during World War II. He stated that he worked in the laundry service and in unloading ships. Following active duty he working in farming and a number of other professional occupations. Audiometric testing confirmed the presence of bilateral hearing loss for VA purposes. With regard to the question of whether the bilateral hearing loss was caused by the Veteran's military noise exposure, the examiner concluded that he could not resolve the issue without resorting to mere speculation, since there were no hearing tests, or complaints of hearing problems, found in the service treatment records. In a December 2012 remand, the Board explained that this medical opinion was inadequate for rating purposes as it had not provided an explanation as to why the question of etiology could not be resolved without speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board then remanded for a second VA examination which was provided in April 2013. At the April 2013 VA examination, the examiner reviewed the claims file, noting the whispered voice tests that were normal at enlistment and separation physicals. The examiner correctly recorded the extent of the Veteran's noise exposure, indicating that he was exposed to artillery and gunfire without using hearing protection, but was not actually in combat. The examiner noted that the Veteran experienced recreational noise exposure since 1965 while working on his farm using tractors and power tools without hearing protection. The examiner acknowledged that the whispered speech test was known to be unreliable because of its insensitivity to high frequency hearing loss, but noted that the Veteran, by his own admission, did not begin noticing hearing loss until approximately 1996. The examiner noted that this was a significantly long period of time after the military noise exposure which ended in 1945. As such, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss either began during or was otherwise caused by his military noise exposure. She added that factors such as age and recreational noise exposure could not be ruled out in this instance. This opinion was logical, based on a complete and accurate understanding of the evidence of record, and was supported by a complete rationale. As such, this opinion is found to be highly probative and entitled to great weight. Moreover, the examiner's conclusion has not been called into question by any competent evidence, making it the most probative evidence of record. Given this conclusion the weight of the evidence demonstrates that it is less likely than not the Veteran's current hearing loss is related to his military service to include any noise exposure therein. See 38 C.F.R. § 3.303(d) (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); Hensley, 5 Vet. App. 155 (provisions of 38 C.F.R. § 3.385 do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service). Bilateral hearing loss has not been shown to be related to the Veteran's military noise exposure or to have otherwise originated during active service. It was not manifested to a compensable degree within one year of service separation and may not be presumed to have been incurred in service. Therefore, service connection for bilateral hearing loss is not warranted and the Veteran's claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. II. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled Veteran is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). The Veteran has filed a claim for TDIU, meaning that he essentially contends that he is unable to work on account of his service connected psychiatric condition. This disability is rated at 50 percent and represents his only service connected disability, meaning that it fails to meet the schedular criteria for a TDIU as the single service connected disability is rated less than 60 percent. Nevertheless, a TDIU may still be available if the Veteran is shown to be unable to secure and/or follow a substantially gainful occupation by reason of this service connected disability. 38 C.F.R. § 4.16(b). In May 2013, the RO referred the Veteran's claim to the Director of Compensation and Pension for consideration of whether an extraschedular TDIU was warranted. In July 2013 the Director of Compensation and Pension concluded that the Veteran was neither unemployed, nor unemployable, as a result of his service connected anxiety disorder. The Board will now consider the evidence in the first instance. As noted the issue is whether the Veteran's service-connected disability is sufficiently incapacitating as to render him unable to obtain or maintain substantially gainful employment. For the following reasons, the Board finds that it is not. As noted, the evaluation of whether a TDIU is warranted is limited to the impairment caused by service connected disabilities (or in this case disability) alone. That is, the impact of non-service connected disabilities is not to be considered. In this case, the Veteran has numerous non-service connected disabilities, including degenerative joint disease in his knees, unspecified idiopathic peripheral neuropathy, glaucoma, pterygium, bilateral hearing loss, cardiomyopathy, atrial flutter, dry eye, postsurgical status of cardiac pacemaker, allergic rhinitis, hypertension, benign hyperlipidemia, coronary artery disease, cervical radiculopathy, male erectile disorder, actinic keratosis, malignant neoplasms of the prostate, thyroid disorder, and osteoarthritis. In March 2009, the Veteran filed a claim seeking individual unemployability. The evidence of record shows that he purchased a café in 1945, which he ran through 1953, before entering farming in 1953 and working in that profession until he retired in the 1990s. A review of the claims file both before and since the Veteran filed his claim seeking TDIU has not shown that he is unable to obtain or maintain substantially gainful employment solely due to his service connected psychiatric disability. In December 2003, a VA examiner stated that the Veteran had been retired for more than 20 years from gainful employment, noting that the Veteran had worked doing farming following his retirement, but had retired from that as well. The Veteran stated that he had no intention of returning to work and did not understand why the question of employability was being asked. The examiner opined that given the Veteran's past history of employment, he believed that the Veteran would be able to work despite his anxiety disorder. The examiner noted that the Veteran had learned to keep busy as a way of coping with his anxiety and depression. At a VA treatment session in January 2009, the Veteran reported that he managed his anxiety well by staying busy with various activities such as riding around the pastures of his farm on an easy go vehicle. He enjoyed staying outdoors during the day, sitting in a chair relaxing, and working on small projects at the lake. At a VA general medical examination in June 2009, the examiner noted that the Veteran's non-service connected heart condition rendered him employable for sedentary work only. At a VA psychiatric examination in September 2009, the examiner concluded that the Veteran's anxiety disorder caused deficiencies in most areas, including work, family relationships, judgment, thinking and mood. However, the examiner did not assert, or even suggest, that it rendered him unemployable. A GAF of 45 was assigned. A GAF score between 41 and 50 is assigned when an individual presents either serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting); or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). While such an evaluation is suggestive of occupational impairment it does not show that the disability is of sufficient severity to prevent substantially gainful employment. In June 2011, the Veteran testified at a hearing before the Board. He stated that he had to quit his business and buy a farm because he did not like being around people. He indicated that he was 92 years old and had difficulty getting around, but continued to walk unassisted. He asserted that his anxiety disorder was of sufficient severity that he could not hold down a job, but he did not elaborate further on why he felt this was so. As noted, the psychiatric treatment records do not suggest that the Veteran is unemployable as a result of his psychiatric disability. Moreover, neither the Veteran, nor his representative, have advanced a compelling argument as to how the Veteran's psychiatric disability had worsened to such a degree that it would preclude him from doing the job he did for approximately 40 years (while service connected for the same psychiatric disability). It is true that the Veteran has not worked in several decades after retiring from farming in the 1990s. The Veteran has suggested that he does not like being around people, outside of his family, but this does not appear to represent a change in the severity of his anxiety disorder. That the Veteran's psychiatric disability impairs his ability to work is not under debate, as the very purpose of VA disability ratings is an acknowledgement that a disability causes some occupational impairment. If the Veteran had no occupational impairment associated with his psychiatric disability, there would be no basis for the current evaluation. The Board acknowledges that the Veteran has been unemployed for a number of years. However, this appears to be due to the fact that he retired nearly three decades ago from farming. The sole fact that a claimant is not working is not enough to mandate the assignment of a TDIU. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. In fact the 50 percent rating the Veteran is assigned for his service connected psychiatric disability is specifically assigned in recognition of the fact that it causes occupational impairment. However, the psychiatric disability has not required any hospitalizations or to have caused severe symptoms such as hallucinations or suicidal ideation. The Federal Circuit has recognized that it is within VA's discretion to determine whether a vocational assessment is required based on the facts of a particular case. See Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011). The Federal Circuit explained that such an assessment might be required "if, for example, the veteran were found medically qualified for a particular type of job, but there was an unusually difficult question as to whether the veteran had the educational or vocational skills for that position." Id. Accordingly, Smith does not require VA to provide a vocational assessment in every instance where a claimant is seeking a total disability rating based on individual unemployability. Smith does require the Board to at least consider whether a vocational assessment is required and to support its determination that one is not required with an adequate statement of reasons or bases. Here, the medical evidence that is of record makes it clear that the Veteran is not precluded from substantially gainful employment based on his service connected psychiatric disability. Moreover, no private medical opinion has been submitted even suggesting that the Veteran's service connected psychiatric disability renders him unable to obtain or maintain substantially gainful employment. There is no dispute that the Veteran's service connected disability limits his ability to work, but it is clear from the medical evidence of record that the Veteran's psychiatric disability does not preclude all forms of employment, so long as age is not taken into account. Accordingly, the Veteran's claim for TDIU is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, § 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in May 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained, and the Veteran denied ever receiving any private hearing treatment. Additionally, the Veteran testified at a hearing before the Board. At his hearing, the Veteran indicated that he had received VA treatment in the 1950s for his eyes; that is, there is no indication that the records address the Veteran's hearing (and indeed he has specifically denied seeking any hearing treatment prior to the 2000s). These records, to the extent that they would be relevant at all, could not be located, despite several attempts by VA. As required, VA notified the Veteran of the inability to obtain these records and requested that he provide any records in his possession. See 38 C.F.R. § 3.159(e). Therefore, a remand is not necessary to seek any treatment records. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Veteran was also provided with two VA audiological examinations (the reports of which have been associated with the claims file). As noted above, the Board found the medical opinion provided in conjunction with the first VA examination to be inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that where VA provides the veteran an examination in a service connection claim, even if not statutorily obligated to do so, the examination must be adequate). The Board accordingly remanded to obtain a second opinion. The Board finds this second opinion to be adequate. The opinion was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Moreover, the examiner had a fully accurate picture of the Veteran's military and post-military noise exposure, and on his reported history as to the onset of his diminished hearing acuity. While a VA medical opinion was not specifically obtained regarding the Veteran employability, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The record in this case is negative for any indication, other than the Veteran's own assertion, that he is totally precluded from working on account of his service connected psychiatric disability. As such, this conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for bilateral hearing loss is denied. A TDIU is denied. ____________________________________________ THOMAS D. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs