Citation Nr: 18140214 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 07-36 423 DATE: October 2, 2018 ORDER Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to TDIU is granted. FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence is against a finding that the Veteran’s left hip disability was incurred in or otherwise the result of his active military service. 2. The preponderance of the competent medical and other evidence is against a finding that the Veteran’s left hip disability was incurred in or otherwise the result of his active military service. 3. The Veteran’s current bilateral hearing loss is not shown to have been present during his military service, or for many years thereafter, nor is it shown to be related to the Veteran’s military service, to include as the result of any incident or loud noise exposure in service. 4. The Veteran’s current tinnitus is not shown to have been present during his military service, or for many years thereafter, nor is it shown to be related to the Veteran’s military service, to include as the result of any incident or loud noise exposure in service. 5. The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2017). 2. The criteria for a grant of service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2017). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 4. The criteria for service connection tinnitus have not been met. 38 U.S.C. §§ 1112, 1113, 1110, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). 5. The criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the Air Force from November 1958 to December 1969. The Veteran had a hearing before the undersigned Veteran’s law judge in September 2008 regarding the issue of entitlement to a total rating due to individual unemployability. In August 2012, the Veteran had a hearing before another VLJ that has since retired from the Board. The Veteran was given an opportunity to have a new hearing and he denied this invitation in a July 2016 response. Thus, the Board has proceeded with the adjudication of the matters on appeal without additional hearing testimony. The Veteran had asserted entitlement to service connection for diplopia as a residual of a facial fracture as due to a motor vehicle accident during his active service. Specifically, he claims he continued to experience double vision since service discharge as a result of his motor vehicle accident that occurred during his active military service. In an August 2018 rating decision, the RO granted service connection for visual impairment secondary to trauma resulting in paresis of the 6th cranial nerve, right eye, with diplopia, with an effective date of July 10, 2007. As a result, the Board is considering this a full grant of the claim sought and as such this issue is no longer before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had an inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104 (a) (2016). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing, if relevant. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table decision). 1. Entitlement to service connection for left and right hip disabilities. The Veteran has asserted entitlement to service connection for a left and right hip disabilities. The Veteran claims that his right and left hip disabilities are related to a motor vehicle accident that occurred during his active service in 1969. The Veteran has been diagnosed with arthritis of the bilateral hips, as such the first element of service connection has been met. The remaining questions are whether there is evidence of an in-service occurrence of an injury or disease and competent evidence of a nexus between the current disability and the in-service disease or injury. A review of the Veteran’s service treatment records shows that on his November 1969 separation medical history form that was signed and completed by the Veteran did not complain of arthritis. On his November 1969 separation examination, the Veteran’s lower extremities were evaluated as clinically normal. As a part of his claim for service connection, the Veteran was afforded a VA examination in April 2017 to determine the etiology of his right and left hip disabilities. The examiner continued the Veteran’s diagnoses of osteoarthritis of the right hip that was first diagnosed in 2009 and the of the left hip that was first diagnosed in 1989. The examiner noted that the Veteran’s service treatment record did not include any complaints or treatment for a right or left hip disability in service. The Veteran’s post service treatment records noted that the Veteran was diagnosed with severe arthritis of the left hip in 1989. After examining the Veteran, it was concluded that the Veteran’s right and left hip disabilities were not related to his 1969 motor vehicle accident and not related to his active military service. The examiner based this conclusion on the fact that the Veterans service treatment records are silent for complaints of hip pain or a hip disability in service, medical evidence of an examination that was provided at the time of the motor vehicle accident in 1969 did not reveal complaints, treatment, or a diagnosis of a left or right hip disability, and the fact that the Veteran did not have first diagnosis of a hip disability for more than 20 years post service. The examiner did consider the Veteran’s statements that he may have dislocated his hips during the motor vehicle accident in 1969; however, the examiner noted that if this had occurred the Veteran would have been in a great deal of pain and this would have been noted at the time of the accident. As evidence to support his claim, the Veteran provided a statement from the Veteran’s private physician dated January 2008, that notes that the Veteran was in a motor vehicle accident in 1969 and that he suffered an open fracture of the humerus as a result. However, Dr. H. C. does relate the Veteran’s bilateral hip disabilities to his active service or his motor vehicle accident. Dr. H.C. goes on to state that the Veteran could have been so severely injured that he could have injured his right and left hips respectively and could have dislocated them due to the severe injury and then spontaneously reduced, causing him to have avascular necrosis of both hips. However, Dr. H.C. does not point to any medical information that supports this theory of a bilateral hip dislocation in service. The Board finds the statements from Dr. H.C. to be very speculative and not based on any evidence found in the Veteran’s medical file. Dr. H.C. states that many things could have happened, but does not actually state that they did happen. As such, the Board is attributing less weight to the opinion provided by Dr. H.C. because it does not seem to be based on the facts presented and is highly speculative. Further, Dr. H.C. does not state that he reviewed the Veteran’s service treatment records or state why a disability such as two dislocated hips would not have been diagnosed at the time of the accident. Additionally, Dr. H.C. does not state why the Veteran did not have a diagnosis of a hip disability for more than 20 years post-service discharge. A review of the treatment records from Dr. H.C. dated February 1990 notes that the Veteran was involved in a car accident in September 1989 and at that time underwent a total hip replacement. He was diagnosed with a fracture of the proximal third of the left femur, spiral oblique, loosening of the left total hip. The Board notes that treatment records following this accident and subsequent total hip replacement do not note evidence of a previous trauma or dislocation. As such, the Board finds it hard to accept Dr. H.C.’s opinion that the Veteran’s left and right hip disabilities are related to his active military service when Dr. H.C. treated the Veteran for a serious hip disability/fracture following a motor vehicle accident in 1989 that did not reveal any prior dislocations or trauma and Dr. H.C. did not discuss the impact of this accident at all when discussing the etiology of the Veteran’s currently diagnosed bilateral arthritis of the hips. All of the above-cited facts have left the Board to conclude that the opinion of Dr. H.C. regarding the etiology of the Veteran’s bilateral hip disability is less probative than that of the VA examiner. The Veteran had no complaints of a hip disability in service. The Veteran was involved in a motor vehicle accident in January 1969 and was discharged from service in November 1969. During that 11-month period, at no time did the Veteran seek treatment or evaluation of his hips nor did complain of hip pain during this period as well. The Veteran’s lower extremities were evaluated as clinically normal in November 1969 and the Veteran did not have complaints of hip pain or seek treatment for hip pain until his motor vehicle accident in 1989, 20 years post service discharge. While it may be the Veteran’s sincere belief that his bilateral arthritis of the hips is related to his active military service, the evidence of record does not support his statements. The medical evidence from 1969 does not include any complaints or treatments of hip pain. The Veteran did not seek treatment in service for hip prior to the accident for 11 months between the accident and his service discharge. The Veteran did not complain of hip pain or seek treatment for years after service, and specifically did not seek treatment until his second motor vehicle accident in 1989. The Board further notes that post-accident in 1969 the Veteran was qualified for flying duty, and this probably would not have been the case if he had a severe bilateral hip injury at the time. The Board also notes that the Veteran did not submit any treatment records for a hip disability prior to 1989 when he was treated for a hip disability status post-motor vehicle accident in 1989. If the Veteran had been suffering from dislocated hips or pain in this region as severe as Dr. C.H. and the Veteran state, then the Board finds that there should be some treatment notes showing complaints or treatment for a left or right hip disability; however, the record is void of this evidence. For these reasons, the Board concludes the preponderance of the competent medical and other evidence of record is against a finding the Veteran’s current left and right hip disabilities were incurred in or otherwise the result of his active service. Therefore, service connection must be denied. 2. Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran has asserted entitlement to service connection for hearing loss and tinnitus. Specifically, he claims that he has bilateral hearing loss and tinnitus due to exposure of jet engine noise in service. For VA compensation purposes, impaired hearing will be considered to be a disability when the auditory threshold level 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 Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (Court) recently held that tinnitus was a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309 (a) “includes tinnitus... as an ‘organic disease [] of the nervous system.’” Fountain v. McDonald, 27 Vet. App. 258 (2015). Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303 (b). Id. The Veteran has been diagnosed with bilateral hearing loss, and as such the first element of service connection has been met. The remaining questions are whether there is evidence of an in-service occurrence of an injury or disease and competent evidence of a nexus between the current disability and the in-service disease or injury. As an initial matter, the Veteran’s Report of Separation, Form DD-214, shows that his military occupational specialty was in the bomb squadron. Moreover, the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis regarding bilateral hearing loss. The Veteran had hearing that was considered normal for VA purposes during his 1959 entrance examination and during his 1969 separation examination. 38 C.F.R. § 3.385. On the Report of Medical History that accompanied his November 1969 separation examination, the Veteran specifically denied having any hearing loss. Nevertheless, these examinations show minimal pure tone threshold shift from entrance to separation, which further corroborates the Veteran’s reports of exposure to acoustic trauma in service. As part of his claim for service connection, the Veteran was afforded a VA examination in April 2017 and the examiner noted that the Veteran had previously made statements that he was exposed to jet engine noise and acoustic trauma from weapons and that during his time in service he wore hearing protection most of the time. The Veteran had also previously reported post-service noise exposure with hearing protection mostly not worn and recreational noise exposure from lawn machinery. The Veteran has been afforded several VA examinations in order to determine whether his currently diagnosed hearing loss is related to his active military service. The examiners in April 2017 and April 2015 both concluded that the Veteran’s hearing loss was not related this active military service. The examiner in April 2017 stated that a comparison of the Veteran’s hearing examinations from November 1958 to November 1960 did not indicate any significant decreases in hearing for either ear. Therefore, it is not likely that the Veteran’s current hearing loss is related to his active military service. In regard to the Veteran’s claim for tinnitus, the Veteran reported to the VA examination in April 2017 that he first began experiencing signs and symptoms of tinnitus about 25 years prior to the examination when moved into his current home. The Veteran told the examiner that his tinnitus was related to power lines coming into the house. At the end of the examination, the VA examiner was not able to provide an etiology of the Veteran’s tinnitus because there are many etiologies. The examiner noted that the Veteran did have in-service for cerumen management and external otitis media in the left ear twice while in service. There is also another medical record that the Veteran experienced right ear pain due to an infected hair follicle. However, the examiner noted that service treatment notes stated that both of these issues were resolved in service. Lastly, the examiner concluded that because the Veteran placed the onset of his tinnitus well after his discharge from service, and has had reported noise exposure since service discharge with hearing protection mostly not worn, it was not likely that his currently reported tinnitus is related to his active military service. At the Veteran’s VA examination in April 2011, the Veteran stated that he had difficulty hearing and had bilateral ringing in his ears. He stated that both his hearing loss and tinnitus began soon after leaving the Air Force and attributed his problems to jet engine noise. The Veteran told the examiner that he could not cite the specific event or time of onset of his tinnitus, but attributed the tinnitus to jet engine noise. At this examination, the Veteran was diagnosed with mild right ear hearing loss and moderate left ear hearing loss. The examiner reviewed the Veteran’s files, including the 15 hearing examinations he underwent during his active service. All tests indicated normal hearing bilaterally, and there was no mention of tinnitus in this service treatment records. The examiner concluded that the Veteran’s bilateral hearing loss and tinnitus were not related to or caused by his active military service. The rationale for this conclusion was that even though the Veteran worked in a hazardous noise environment in service, there was no indication of hearing loss or a permanent threshold shift and the records indicate that the Veteran left service with excellent hearing. The Veteran’s diagnosis of hearing loss in April 2011 was the first notation of hearing loss in the Veteran’s medical file and he stated that he has not sought treatment for hearing loss or tinnitus privately. The Veteran stated in September 2003 that he had not received any private treatment for hearing loss after service discharge. The Board notes that the Veteran first filed a claim in 1997 for benefits, and it this time made no complaints of hearing loss or tinnitus and did not file a claim for benefits for these disabilities, even though he told the examiner in April 2011, that he had been having difficulty hearing and experienced tinnitus soon after leaving service. The Veteran has made inconsistent statements regarding the onset of his tinnitus. In 2011, he stated that his tinnitus began soon after leaving the Air Force and attributed his problems to jet engine noise. However, in 2017, he told the examiner that his tinnitus did not begin for many years after service and was related to power lines that ran into his home. Due to the variability of statements between the interviews, it leaves some doubt as to the credibility of the Veteran’s testimony, especially regarding the onset of his tinnitus. The Board does not doubt that the Veteran does experience tinnitus or ringing in his ears; however, the exact onset of his tinnitus has been called into question. Due consideration has been given to the Veteran’s statements regarding the onset of his bilateral hearing loss and tinnitus. However, the first objective post-service medical evidence referencing complaints or treatment for bilateral hearing loss is not shown until his 2011 audiological evaluation, approximately 41 years after the Veteran was discharged from active duty service. This period without any complaints or treatment is evidence that weighs heavily against the Veteran’s claim, as well as his inconsistent statements regarding the onset of the disability. The Board finds that the VA medical opinions from 2011 and 2017 are the most probative regarding the relationship between the Veteran’s current bilateral hearing loss and tinnitus and his military service. Both VA examiners provided their opinions after reviewing the complete evidence of record, performing a comprehensive diagnostic evaluation of the Veteran, and considering the Veteran’s statements. Moreover, both VA examiners provided well-supported medical opinions based on their examination findings. As the preponderance of the evidence is against a link between the Veteran’s current hearing loss and tinnitus to his in-service noise exposure, service connection cannot be established. Hogan v. Peake, 544 F.3d 1295, 1297 (Fed. Cir. 2008). Accordingly, service connection is not warranted. Gilbert, 1 Vet. App. at 54; 38 C.F.R. § 5107. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) The Veteran has filed a claim for a total disability rating based on individual unemployability due to service-connected disabilities. Specifically, the Veteran has stated that his shoulder disability makes it unable for him to work. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th-grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran currently has a total disability rating of 80 percent. Given the ratings for his orthopedic disabilities, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16 (a). The Veteran reports that although he did not stop working due to his service-connected disabilities, given the severity of those conditions, he is not able to obtain and retain gainful employment. Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran’s service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). Thus, given the evidence regarding the severity of the Veteran’s service-connected disabilities, and opinions and evidence indicating the Veteran’s functional limitations due to his disabilities, and in light of his individual work experience, training and education, the Board finds that the evidence shows he is entitled to an award of a TDIU rating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, the Veteran’s appeal is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson