Citation Nr: 1621668 Decision Date: 05/31/16 Archive Date: 06/08/16 DOCKET NO. 14-04 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active duty service from September 1968 to September 1971. He is the recipient of numerous awards and decorations, to include the Combat Infantryman Badge and Purple Heart. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2011 and July 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for bilateral hearing loss and entitlement to a TDIU, respectively. This appeal was remanded in July 2015 for additional development, which has been completed. FINDINGS OF FACT 1. A bilateral hearing loss disability was not present in service or for many years thereafter and is not etiologically related to active service. 2. The most probative evidence indicates that the Veteran's service-connected disabilities do not preclude him from substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). Here, VCAA notice was provided by correspondence in January 2011 and August 2011. The claims were last readjudicated in February 2016. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment and personnel records, post-service treatment records, and VA examination and opinion reports. Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Moreover, the Agency of Original Jurisdiction (AOJ) has substantially complied with the previous remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2014) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). However, the reduced evidentiary burden of 38 U.S.C.A. § 1154(b) applies only to the question of service incurrence and not to the question of a nexus to service. See Libertine, supra. Section 1154(b) does not establish service connection for a combat Veteran. Instead, section 1154(b) aids a combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran still must establish his claim by competent evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999). Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law 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. See 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." See Hensley, 5 Vet. App. at 160. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Veteran contends that his current hearing loss is etiologically related to service. Essentially he contends that he developed hearing loss related to incidents of excessive noise exposure from explosives, artillery fire, bombs and rocket fire, without hearing protection, while stationed in the Republic of Vietnam. As such exposure is consistent with the circumstances of the Veteran's service, the element of in-service injury, in the form of acoustic trauma, is met. The second element of service connection, that of a currently diagnosed disability, is also met. VA audio examinations starting in 2011 show that the Veteran has current hearing loss disability as defined by VA regulation. 38 C.F.R. § 3.385. Having determined that the Veteran currently has diagnosis of bilateral hearing loss, the remaining question before the Board is whether the condition is related to his service. Service treatment records document no complaint, finding, or diagnosis pertinent to the Veteran's ears or hearing loss. On enlistment examination in July 1968, the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz in the right ear were -5, -5, -5, and -5, and on the left were 5, 0, -5, and 0. On separation from service in May 1971, the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz in the right ear were 0, 0, 0, and 5, and in the left ear were 0, 0, 0, and 0. After service, hearing loss was not diagnosed until 2010, at which time he was fitted with hearing aids. As the competent evidence fails to show a hearing loss disability in service or for approximately four decades thereafter, competent evidence linking the current hearing loss disability with service is required to establish service connection. On this question, the weight of the probative evidence is against the claim. A VA medical opinion regarding the etiology of the Veteran's bilateral hearing loss was obtained in April 2011. After reviewing the record, to include the Veteran's service treatment records and records of his current treatment with hearing aids, the examiner stated that it was less likely than not that the Veteran's present hearing loss was caused by or a result of an event in military service. In support of this opinion, the examiner cited to the fact that the Veteran entered and was discharged from military service with hearing thresholds within normal limits. However, in 2015 the Board found the opinion inadequate because it relied solely on the absence of hearing loss documented in his service treatment records, and did not address the Veteran's history of in-service acoustic trauma, or consider his lay statements. On VA audio examination in September 2011, the examiner noted that military noise exposure from combat was conceded. The Veteran also endorsed occupational noise exposure from working as a logger operating a power saw without hearing protection for approximately 19 years. He also reported occupational noise exposure from working as an assembler in a furniture factory without hearing protection for approximately 19 years. He denied any recreational noise exposure. In October 2015, a VA medical opinion was obtained. Following a review of the claims file, including service treatment records and examination reports, the examiner opined that the Veteran's hearing loss was less likely as not related to an event in military service, including noise exposure. The examiner reported that while in-service noise exposure was conceded and the relationship between hearing loss and noise exposure was well documented in medical literature, there must be a nexus of auditory damage to relate current hearing loss to noise exposure during active duty. Here, the examiner determined that the evidence did not support a finding of in-service auditory damage to establish the required nexus. The service treatment records failed to show any significant permanent shift in hearing from entrance to separation to indicate any damage to the auditory system while on active duty. His hearing was normal in service and the audiometric testing did not show a progression in hearing loss at that time. After service, the Veteran related difficulties with hearing associated with a stroke in January 2010. Further, the Institute of Medicine (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after noise exposure. Dobie and Megerson echoed the sentiment of the Institute of Medicine in the noise manual, fifth edition, writing, "once noise exposure ceases, further progression of hearing loss must be due to other causes." Given that the Veteran endorsed worsening hearing after service, it must be attributable to a cause other than military noise exposure. Moreover, the Veteran provided lay testimony that hearing loss continued to worsen which further supported an active etiology, other than military noise exposure. The Board assigns greatest weight to the opinion of the VA audiologist in 2015. The opinion was provided following review of the claims file and examination of the Veteran, considered the Veteran's contentions, and provided an adequate rationale for the conclusions reached. The clinician explained why the current bilateral hearing loss was not related to service. The opinion contains an internal logic consistent with the known facts, as well as with other evidence of record. Accordingly, it is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Significantly, there is no competent medical evidence that contradicts the VA audiologists' opinions. While the Veteran sincerely believes he suffers from hearing loss due to excessive noise in service and he is competent to describe symptoms of hearing problems, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of hearing loss are matters that require medical expertise to determine. The Board finds the medical opinion rendered by the VA examiner to be significantly more probative than the Veteran's lay assertions. In sum, the Board finds that the weight of the evidence is against a finding that the Veteran's currently diagnosed bilateral hearing loss arose in service. Moreover, sensorineural hearing loss was not shown within one year following discharge from service, and the provisions regarding continuity are not for application. See Walker, 708 F.3d at 1340 (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2015). Therefore, the Board finds that the preponderance of evidence is against a finding of service connection for bilateral hearing loss. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU The Veteran claims that his service-connected disabilities prevent him from engaging in substantially gainful employment. Specifically, he asserts that the service-connected ischemic heart disease renders him unemployable. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). In reaching that determination, 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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 or more. 38 C.F.R. § 4.16(a) (2015). It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b). For a Veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Service connection is currently in effect for ischemic heart disease, evaluated as 60 percent disabling effective November 2010; tinnitus, evaluated as 10 percent disabling from November 2010; and residuals of shrapnel fragment wound to the right side of the chest, evaluated as noncompensably disabling, effective September 1971. The Veteran's combined disability evaluation during the course of the claim is 60 percent. The question before the Board is whether the Veteran is unemployable by reason of his service-connected disabilities, taking into account his educational and occupational background. The Board finds that the greater weight of the probative evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Historically, the evidence reflects the Veteran completed two years of college. His occupational history included work as a logger and as an assembler in a furniture factory for approximately 19 years. He was last employed in 2009. In a statement in August 2011 the Veteran reported that he stopped working when he became eligible to retire, although he probably would have quit due to his health condition. VA and private treatment records show no treatment for heart disease. Private hospital records dated in 2010 show a complaint of neurological deficits with final diagnosis of stroke. Chest imaging studies were negative for heart disease as was an echocardiogram which revealed normal function with an ejection fraction of 58 percent. A heart attack was ruled out at that time. On VA heart examination in February 2011, the examiner noted a history of cerebrovascular accident in 2010 with no residual neurological deficit. The examiner opined that the Veteran did not have chest pain or active ischemic heart disease. Accordingly, the examiner concluded that the Veteran's ischemic heart disease had no occupational effect on the performance of activities of daily living. In a February 2011 Ischemic Heart Disease (IHD) Disability Benefits Questionnaire the Veteran's private treating physician noted that the Veteran had ischemic heart disease with pertinent diagnoses of hypertension and hyperlipidemia. There was no history of percutaneous coronary intervention, myocardial infarction, coronary bypass surgery, heart transplant, cardiac hypertrophy or dilatation, congestive heart failure, implanted cardiac pacemaker or implanted automatic implantable cardioverter defibrillator. The physician indicated that the symptoms of the Veteran's heart disease manifested in the following ways: a workload of three to five metabolic equivalents (METs) resulting in fatigue and dizziness. This METs level was found to be consistent with activities such as light yard work (weeding) mowing lawn (power mower) brisk walking (4 mph). The physician concluded that the Veteran's service-connected heart disease impacted the Veteran occupationally in that it resulted in limited capabilities. On VA audio examination in February 2011 and September 2011, the examiners opined that the Veteran's tinnitus was productive of occupational impairment in that it resulted in difficulties hearing. On VA examination in September 2011 the examiner noted that the Veteran denied any symptoms associated with residuals of a shrapnel would to the chest. The condition had no effect on the Veteran occupationally. The condition had no effect on the Veteran's activities of daily living. The Veteran had retired from the furniture business in 2009. The Veteran denied chest pain; however, he endorsed dyspnea which was thought to be associated with chronic obstructive pulmonary disease (COPD), diagnosed in 2008. His METs by estimation were determined to be between five and six, limited by dyspnea from COPD. Cardiovascular evaluation showed regular rate and rhythm, with no murmur, gallops, click or rubs. No jugular venous distention was noted. The Veteran had pectus excavatum. The examiner diagnosed hypertension status post two cerebrovascular accidents, without sequelae; COPD; shell fragment wound to the chest, superficial and asymptomatic; fractured right tibula and fibula status post ORIF and grafting; psoriasis; cataracts; no history or evidence of ischemic heart disease, and; poor oral hygiene with multiple missing and damaged teeth. In an addendum opinion report in January 2016, following a review of the claims file, a VA physician noted the Veteran's heath conditions were productive of occupational limitations because the Veteran had a history of physical labor in the furniture industry and he was now limited in his ability to walk, as well as his ability to perform activities that required physical stamina. However, not one of these limitations was caused by the Veteran's ischemic heart disease. Rather, the functional effects mentioned were due in part due to his cerebrovascular accident and COPD, which due to smoking. Upon consideration of the record, the Board concludes that the preponderance of the evidence does not demonstrate that the Veteran's service-connected disabilities alone, when considered in association with his educational attainment, occupational background, and training, render him unable to secure or follow a substantially gainful occupation. Although the evidence of record indicates that the Veteran has not worked during the pendency of the appeal, and the Veteran's service connected disabilities are productive of some occupational limitations, the preponderance of the evidence is against finding that his service-connected disabilities render him unemployable. Rather, the more probative evidence of record, to include the VA examination reports, attributes the Veteran's work limitations to his more significant health problems for which service connection has not been established, specifically his COPD and cerebrovascular accidents. Most notably, the January 2016 VA examiner found that the February 2011 statement from the Veteran's private physician attributing his reduced METs workload to IHD was inconsistent with the remainder of the evidence, which failed to document IHD, or symptoms related to IHD. Rather, the bulk of the evidence supported a finding that the symptomatology described by the private physician was attributable to COPD, and not IHD. For this reason, and because it does not appear that the private physician considered the effects of the Veteran's COPD in estimating his METs, the Board affords the February 2011 DBQ from the Veteran's private physician less probative weight than the VA examiners' opinions. See Nieves-Rodriguez, 22 Vet. App. at 302-04. In sum, the preponderance of the competent evidence of record is against a finding that his service connected disabilities, either singularly or jointly, preclude the Veteran from gainful employment. Accordingly, the Board finds that a total disability rating based upon individual unemployability due to service-connected disabilities is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for bilateral hearing loss is denied. Entitlement to a total disability rating for based on individual unemployability is denied. ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs