Citation Nr: 1614441 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 09-12 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to July 18, 2012. 3. Entitlement to special monthly compensation at the housebound rate, pursuant to 38 U.S.C.A. § 1114(s). 4. Entitlement to an effective date earlier than October 24, 2007 for the grant of service connection for residuals of injury to the left knee, with degenerative joint disease and a torn ligament (left knee injury). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active service from February 1965 to August 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2005 and August 2007 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee, that, in pertinent part, denied service connection for bilateral hearing loss and hypertension. In February 2010, the Veteran testified during a hearing before the undersigned that was conducted by video conference. A transcript of the hearing is of record. In March 2011, the Board, in pertinent part, remanded the matters of whether new and material evidence was received to reopen the claims for service connection for hearing loss and hypertension to the agency of original jurisdiction (AOJ) for further development. A June 2012 rating decision granted service connection for a left knee injury that was assigned an initial 10 percent rating, effective October 24, 2007. An August 2013 rating decision denied entitlement to a TDIU. The Veteran submitted a timely notice of disagreement, and a Statement of the Case was issued in November 2014. His substantive appeal was received by the AOJ in December 2014, after his file was transferred to the Board. The Board acknowledges that the issue of entitlement to a TDIU was perfected, but not yet certified to the Board. The Board will exercise judicial discretion and accept jurisdiction over the claim at this time. In January 2015, the Board noted that the claim for service connection for hypertension was more properly considered on a de novo basis. In its decision at that time, the Board granted service connection for tinnitus and a right foot fungal infection and reopened the claim for service connection for bilateral hearing loss. The Board remanded the reopened claim of service connection for hearing loss and the claim of service connection for hypertension to the AOJ for further development. A July 2015 rating decision granted service connection for hypertension, that represents a full grant of the benefits sought as to that claim. The Veteran's combined disability rating is 100 percent from July 18, 2012. His claim for a TDIU will be considered prior to July 18, 2012. In light of the decisions of the United States Court of Appeals for Veterans Claims (court) in Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) and Bradley v. Peake, 22 Vet. App. 280 (2008), the Board must consider the Veteran's entitlement to special monthly compensation (SMC) at the housebound rate. In January 2015, the Board referred the Veteran's claims for increased ratings for posttraumatic stress disorder (PTSD) and diabetes mellitus, type II, to the AOJ for consideration and adjudication. There is no indication that the matters were adjudicated and they are, again, referred to the AOJ for appropriate action. The matters of an earlier effective date for the grant of service connection for a left knee injury and entitlement to SMC are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Current bilateral hearing loss had its onset in service. 2. The Veteran has been unable to secure and maintain substantially gainful employment due solely to the effects of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our Veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). I. Service Connection Contentions The Veteran contends that he was exposed to acoustic trauma from military aircraft, including helicopters, and artillery weapons. He reports that he temporarily lost his hearing during his service in Vietnam and that the acoustic trauma from aircraft noise caused his current hearing loss. See Board hearing transcript at page 20. His duties in service consisted of naval support activity in Vietnam. See January 1967 military personnel record and Report of Transfer or Discharge (DD Form 214). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A.§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007), overruled on other grounds Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In Walker, the Federal Circuit held that regulations providing for service connection based on continuity of symptomatology only applied to chronic diseases specifically listed in 38 U.S.C.A. § 1101, including sensorineural hearing loss as a disease of the nervous system. For 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 (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the above frequencies 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. In Hensley v. Brown, 5 Vet. App. 155 (1993), the court stated that 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. Id. at 159. The court explained that, when audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a "disability", the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The court cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 1. Analysis The Veteran's noise exposure in service is not in question. The Board conceded the Veteran's exposure to acoustic trauma in its January 2015 decision that granted service connection for tinnitus. The record shows current hearing loss as defined in 38 C.F.R. § 3.385. See May 2015 VA examination report. The remaining question is whether there is a link between the current disability and the in-service disease or injury (in this case, exposure to acoustic trauma). There is no documentation of any pertinent complaints for decades after service. On the other hand, the Veteran had weapons and aircraft noise exposure in service and the absence of documented complaints is not dispositive. In general, the Board may not rely on the absence of evidence as substantive negative evidence, the exception being when there is an evidentiary basis establishing that a fact in question would ordinarily have been recorded in the document or documents in question. See Horn v. Shinseki, 25 Vet. App. 231, 239 & n. 7 (2012). During his Board hearing, and in written statements, the Veteran reported having temporary hearing loss in service, and since his discharge from active service. A February 2001 VA audiology note for an annual hearing re-check shows mild to moderate hearing loss. During February 2002 and October 2004 VA audiology evaluations, the Veteran reported a history of military noise exposure. He currently worked in Engineering Services at the VA facility, with periodic noise exposure for 15-20 minute periods without hearing protection because he was unable to properly hear machinery. The Veteran reported two incidents in the past, one in service, when his right ear "went completely dead" and then his hearing returned after a period of time. A March 2010 VA audiology evaluation reflects the Veteran's history of hearing loss that began suddenly in service after acoustic trauma. A January 2013 private treatment record includes the Veteran's complaint of hearing loss and his report of noise exposure in military service from firearm use. In May 2015, the VA examiner diagnosed bilateral sensorineural hearing loss that was less likely than not caused by or a result of active service. The examiner's reasoning was that the Veteran reported the onset of hearing loss that occurred approximately 30 years ago, which would have been in the mid-1980s. This time of onset was well after his 1967 separation from active duty military service. The examiner also noted that the Veteran reported a history of occupational noise exposure after his separation from the military. Because there was no evidence in the service medical records to support his claim due to the lack of a valid audiogram at separation, and because the Veteran did not provide a clear nexus between the onset of hearing loss and his military service, hearing loss was deemed less likely than not caused by or a result of military noise exposure The May 2015 VA opinion is of limited probative weight because it was essentially based solely on a lack of medical evidence of treatment for bilateral hearing problems in the Veteran's service treatment records. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). See also Horn v. Shinseki, supra. Considering the credible evidence provided by the Veteran, the conceded noise exposure in service, and noise exposure since service, the evidence linking the Veteran's bilateral hearing loss to service is at least in equipoise. Resolving reasonable doubt in favor of the Veteran, service connection is granted. 38 U.S.C.A. § 5107(b). II. TDIU A total disability rating may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, the following percentage thresholds must be met: if there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a Veteran's service-connected disabilities meet the percentage requirements of 38 C.F.R. § 4.16(a), and the evidence of record indicates that he is unable to maintain substantially gainful employment due to his service-connected disabilities, his claim for a total disability rating based on unemployability cannot be denied in the absence of medical evidence showing that he is capable of substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Prior to July 18, 2012, the Veteran is in receipt of a 70 percent rating for PTSD; a 60 percent rating for coronary artery disease; a 20 percent rating for diabetes mellitus, type II; and 10 percent ratings for tinnitus and a left knee disability; he thus meets the percentage requirements for TDIU. 38 C.F.R. § 4.16(a). The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can actually find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. Wise v. Shinseki, Gilbert v. Derwinski, supra. A February 2013 formal claim for a TDIU (VA Form 21-8940) indicates that the Veteran last worked full time in 2011 and that all his service-connected disabilities affected full time employment. He worked in air conditioning maintenance from 1985 to 2011 at the VA medical center (VAMC) in Nashville, completed four years of high school, and had additional air conditioning maintenance training. (A July 1967 military personnel record indicates the Veteran completed only 10 years of education. In June 1982, he reported not completing high school and a masonry course to be a bricklayer, and completing barber college, and had work experience in maintenance and as a latex mixer for carpet use.) In a November 2013 VA Form 21-8940, the Veteran reported that he was unable to work due to his service-connected PTSD and coronary artery disease. His disabilities affected full time employment in 2008 and he last worked full time in 2011. He had some training as a barber. The Veteran's last employer, the Nashville VAMC, reported in March 2013 that he worked in air conditioning equipment repair full time from March 1985 to December 2011, when he retired based on length of service. The medical evidence includes an August 2012 VA examination report in which the examiner opined that the Veteran's diabetes (and its complications) did not impact his ability to work. In April 2013, a VA examiner opined that the Veteran's coronary artery disease impacted his ability to work in that he felt tired and fatigued with heavy labor. The Veteran's left knee disability caused increased pain with prolonged standing and walking. There were no restrictions to sedentary work. The Veteran's diabetes mellitus did not cause functional impairment. The examiner did not offer examples of the types of jobs the Veteran could perform. After an August 2014 VA examination, the examiner indicated that the Veteran's heart disability impacted his ability to work. It was noted that the Veteran's reported metabolic equivalents (METs) level of less than 5-7 was found to be consistent with activities such as walking one flight of stairs, golfing (without cart), mowing the lawn (using a push mower), and heavy yard work (digging). The examiner did not offer examples of the type of jobs the Veteran could perform. In September 2014, a VA PTSD examiner commented that, hypothetically, the Veteran would not be prohibited from performing work tasks due to his PTSD symptoms, and noted that the Veteran was retired and not planning on pursuing work further. The Veteran's PTSD symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. The examiner concluded that the Veteran's PTSD caused some reduction in reliability and productivity, but did not provide examples of the types of job the Veteran could perform. The Veteran's work experience for the past 30 years has been in air conditioning maintenance, a job that presumably required considerable physical movement and agility to repair heavy machinery. He has not reported, and the record does not remotely demonstrate, that he had any sedentary work experience. The Veteran's PTSD disability alone, suggests that it would be difficult for him to obtain work that accommodates his psychiatric symptoms. It is hard to imagine the type of job the Veteran could perform that would accommodate both his psychiatric and physical disabilities. The evidence is at least in equipoise as to whether the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment consistent with his education and occupational experience. The court has held that determinations of unemployability are legal questions and medical opinions are not entirely dispositive. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board has not assigned a specific effective date for the grant of a TDIU. This is to insure that there is no denial of the Veteran's due process rights. The AOJ will set the effective date for the TDIU (after assigning an initial disability rating for bilateral hearing loss based upon the Board's determination herein), and the Veteran will have the opportunity to submit additional evidence and argument on that element of his claim. See Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (holding that the Board may not decide elements of a claim not considered in the first instance by the AOJ). ORDER Service connection for bilateral hearing loss is granted. A TDIU is granted. REMAND As the Veteran is already in receipt of a 100 percent schedular rating for his combined service-connected disabilities from July 18, 2012, it follows that the issue of entitlement to a TDIU under 38 C.F.R. § 4.16 would be rendered moot. Nevertheless, in Bradley v. Peake, 22 Vet. App. at 293-94, the court determined that, while no additional disability compensation could be paid when a total schedular disability rating was already in effect, a separate award of a TDIU predicated on a single disability could form the basis for an award of SMC. The court subsequently declared that if a Veteran were awarded a TDIU (or by analogy in this case a schedular 100 percent rating) based on multiple underlying disabilities and then later received a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, the order of the awards would not be relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. at 250. Thus, pursuant to Bradley and Buie, although entitlement to a 100 percent combined schedular rating was previously granted due to the combined impact of the Veteran's service-connected disabilities, VA still needs to consider whether an award of SMC pursuant to 38 U.S.C.A. § 1114(s) is warranted on the basis of TDIU for one of the service connected disabilities and additional compensation totaling 50 percent or more. Buie. The June 2012 rating decision granted service connection for a left knee injury and assigned an initial 10 percent rating, effective October 24, 2007. In November 2012, the Veteran submitted a timely notice of disagreement as to the matter of an effective date earlier than October 24, 2007 for the grant of service connection for his left knee disability. However, the record does not reflect that the RO issued a statement of the case on this issue. Hence, the Board must remand the matter for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case regarding entitlement to an effective date earlier than October 24, 2007 for the grant of service connection for a left knee injury. Do not certify this issue to the Board unless a timely substantive appeal is received. 2. Schedule the Veteran for a VA examination by a physician. The claims file and a copy of this remand should be reviewed by the examiner who is requested to address the following questions. a. The examiner shall address whether any one of Veteran's service connected disabilities (PTSD, coronary artery disease, diabetes mellitus, type II, tinnitus, residuals of left knee injury, peripheral neuropathy of the left and right lower extremities, bilateral hearing loss, bone spur of tip of long finger of left hand, hypertension, right foot tinea pedis, and erectile dysfunction) individually has rendered him unable to secure or follow a substantially gainful occupation at any time since 2012. b. If the examiner is unable to answer these questions without resort to speculation, the examiner should say whether the inability is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would enable the opinion to be provided. 3. The AOJ should adjudicate entitlement to SMC on account of being housebound. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs