Citation Nr: 18142587 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-31 314 DATE: October 17, 2018 ORDER The request to reopen the finally disallowed claim of entitlement to service connection for bilateral hearing loss is granted. A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an October 1980 rating decision, the RO denied a claim of entitlement to service connection for bilateral hearing loss. No timely appeal was received by VA, nor was any new and material evidence submitted within the applicable appeal period. 2. Additional evidence received since the RO’s October 1980 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. The record evidence is at least in relative equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected left knee disability. CONCLUSIONS OF LAW 1. The October 1980 rating decision is final as to the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A June 2014 rating decision denied entitlement to service connection for bilateral hearing loss, and the Veteran perfected an appeal of that decision. See June 2014 Notice of Disagreement; May 2016 Statement of the Case; June 2016 VA Form 9. A November 2016 rating decision denied entitlement to a TDIU, and the Veteran perfected an appeal of that decision. See December 2016 Notice of Disagreement; July 2017 Statement of the Case; September 2017 VA Form 9. The issue of entitlement to service connection for bilateral hearing loss was previously denied in October 1980. The Board acknowledges that the RO reopened and denied the Veteran’s claim on the merits. Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the Veteran’s claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The issue of entitlement to a TDIU was not certified to the Board. The Veterans Appeals Control and Locator System (VACOLS) does not document receipt of the Veteran’s timely September 2017 substantive appeal, and it shows that the appeal was closed due to the Veteran’s failure to respond to the statement of the case. Accordingly, it appears that the RO is no longer taking action on this issue. In light of the foregoing, the Board will accept jurisdiction of the Veteran’s TDIU claim because an appeal has been perfected and there is no indication that the Veteran withdrew this issue. I. New and Material Evidence The Veteran’s claim of entitlement to service connection for hearing loss was previously denied, and the Veteran seeks to reopen the claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran initially filed a claim of entitlement to service connection for hearing loss in August 1980. In an October 1980 rating decision, the RO denied the claim on the basis that the evidence failed to show a hearing loss disability due to service. The Veteran was notified of the decision and his appellate rights by a letter dated in October 1980. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision. The October 1980 rating decision therefore became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the RO’s October 1980 rating decision included the Veteran’s service treatment records. Based on this evidence, the RO concluded that the Veteran’s did not have hearing loss due to service and denied the Veteran’s claim for service connection. In December 2013, the Veteran requested that his claim of entitlement to service connection for hearing loss be reopened. Relevant additional evidence received since the RO’s October 1980 rating decision includes VA treatment records and an examination report showing current bilateral hearing loss and lay statements from the Veteran and others regarding in-service acoustic trauma and post-service symptoms. This evidence was not previously on file at the time of the RO’s October 1980 decision; thus, it is new. Furthermore, this evidence is material because it reflects a current hearing loss disability and it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran’s disability. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Accordingly, the claim of entitlement to service connection for bilateral hearing loss is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The underlying claim is addressed further in the Remand section below. II. Entitlement to a TDIU The Veteran contends that his service-connected left knee disability renders him unemployable. See July 2016 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is 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, or if there are two or more disabilities, there shall be at least one 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). Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran’s age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). The Veteran filed a claim for a TDIU in July 2016. He is currently service-connected for a left knee disability, status post total knee replacement, rated as 60 percent disabling since April 19, 2016. He is not service-connected for any other disability. Thus, the Veteran’s 60 percent disability rating for a left knee disability meets the criteria for a schedular TDIU rating under 38 C.F.R. § 4.16(a) for the entire appeal period. Therefore, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected left knee disability. 38 C.F.R. § 4.16(a). The evidence shows that the Veteran last worked in a substantially gainful occupation in 2012 as a factory machine operator, a position he held for five years. The Veteran’s past work experience includes consists of factory work, including heavy equipment operation. The Veteran graduated from high school. See July 2016 VA 21-8940; December 2016 VA 21-4192; SSA Records. The Veteran underwent a total left knee replacement in October 2011. A March 2012 letter shows that the Veteran’s employment was to be terminated in May 2012 due to long-term disability leave. A decision from the Social Security Administration (SSA) reflects that in March 2012, it was determined that the Veteran had not engaged in substantial gainful activity since April 2011 due to a severe left knee disability, but was additionally limited by a severe, nonservice-connected, low back disability. The SSA found that the Veteran had the residual functional capacity for “light” exertional work and that he was unable to perform his past relevant work as a factory worker. Considering the Veteran’s age, education, work experience, and residual functional capacity, the SSA found that the Veteran was disabled. Although the criteria used by the SSA are not the same as VA criteria for an award of TDIU, and the SSA determination is not binding on VA, such determinations are probative evidence supporting entitlement to a TDIU. See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); Martin v. Brown, 4 Vet. App, 136 140 (1993). Moreover, there is no adequate reason to reject the SSA determination that is favorable to the Veteran’s TDIU claim. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). During a May 2014 VA examination, the Veteran reported that he could only walk for one block and stand for thirty minutes before left knee pain rendered him unable to function. The examiner noted that the Veteran used a cane due to his knee condition. During an April 2016 VA examination, the Veteran reported swelling of his left knee cap after standing for more than 20 minutes and constant left knee pain. He also reported that his left knee locked up after sitting for more than an hour. He indicated that his left knee gives out, causing him to stumble and fall approximately two to three times per week, especially with inclines and uneven surfaces. The examiner noted that the Veteran had chronic residuals consisting of severe painful motion or weakness following his total left knee replacement. The examiner opined that the Veteran’s left knee disability impacted his ability to perform occupational tasks in that the Veteran was limited in his ability to do prolonged walking, standing, sitting, walking down an incline, pushing, and pulling. In a July 2016 statement, the Veteran reported that he worked his entire career in jobs that required heavy lifting, bending, standing, twisting, and walking. He indicated that before he recovered from his left knee total knee replacement, he was terminated from his job because he was unable to meet the physical demands of his position. A December 2016 VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) completed by the Veteran’s last employer shows that the Veteran was terminated in May 2012 due to exhaustion of medical leave. After a careful review of the evidence of record, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected left knee disability. As the April 2016 VA examiner found, the Veteran’s service-connected left knee disability prevents him from performing any job requiring pushing, pulling, or prolonged walking, sitting, and standing. Thus, as the RO essentially conceded in the November 2016 rating decision, the Veteran’s service-connected left knee disability precludes all but sedentary work. However, the fact that the Veteran can do light or sedentary tasks does not equate to a finding that he is able to secure and follow a substantially gainful occupation. The mere theoretical ability of the Veteran to perform some unidentified light or sedentary occupation is insufficient to find against the claim. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). Here, the Veteran’s training and prior job experience have not realistically prepared him for many productive light or sedentary occupations. After leaving the service, the Veteran worked in physically demanding jobs, including factory work and baking. There is no evidence that the Board can discern that the Veteran possesses the training or work experience which would permit him to obtain or retain a job requiring solely light or sedentary tasks. Rather, the evidence strongly indicates that his training and job experience is limited to professions which require the very type of physical activity that is now precluded by his service-connected left knee disability. The Board emphasizes that the test is not whether the Veteran is precluded from all types of employment, but whether such employment is realistically within the physical and mental capabilities of the claimant. In this case, the Board acknowledges that the Veteran has non-service connected disabilities that impact his ability to work. However, given the severity of his left knee disability, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the most competent and credible evidence of record illustrates that the symptoms due solely to his service-connected left knee disability would prevent him from performing physical labor. Given that the Veteran meets the schedular requirements under 38 C.F.R. § 4.16(a), that the medical evidence shows he is limited to light/sedentary work due to his left knee disability, and that the other record evidence shows his only work experience and training was in physically demanding fields, the Board resolves all reasonable doubt in the Veteran’s favor and determines that a TDIU rating is warranted. 38 U.S.C. §§ 5107(b), 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.400, 4.3. REASONS FOR REMAND The Veteran contends that his bilateral hearing loss was incurred as a result of his exposure to loud noises while serving in an artillery battalion. The Veteran has been diagnosed with bilateral hearing loss and the severity of his hearing loss in each ear meets the criteria for a disability as defined by 38 C.F.R. 3.385. See May 2014 VA Examination Report. Also, the Veteran’s service records indicate that he served as an armor supply specialist in an artillery unit, and he has competently reported that he was exposed to noise from artillery rounds, grenades, and trucks. Since the Veteran was afforded a VA examination in May 2014, there has been an update on VA’s policy for interpreting audiometric data. The Veteran had in-service audiological evaluations in May 1969 and November 1970, at which time auditory thresholds were recorded. It is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. In accordance with the updated policy for interpreting audiometric data, for service audiological evaluations conducted prior to January 1, 1967, VA protocol is to presume the ASA standard was used. For service audiological evaluations conducted between January 1, 1967 and December 31, 1970, VA protocol is to consider the data under both ASA and ISO-ANSI standards, relying on the unit measurements most favorable to the Veteran’s appeal. For service audiological evaluations conducted after December 31, 1970, VA protocol is to assume the ISO-ANSI standard was used. In light of the above, and where necessary to facilitate data comparison for VA purposes, including under 38 C.F.R. 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 Add 15 15 10 10 10 5 10 10 The Veteran’s March 1969 enlistment report of medical examination shows that the Veteran’s pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) / 25 (30) LEFT 0 (15) 0 (10) 0 (10) / 45 (50) The Veteran’s November 1970 discharge report of medical examination shows that the Veteran’s pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) / 5 (15) 5 (10) LEFT 5 (20) 5 (15) / 10 (20) 10 (15) The Veteran was afforded a VA examination in May 2014. Following a physical examination of the Veteran and a review of the claims file, the VA examiner diagnosed the Veteran with bilateral hearing loss. The examiner opined that the Veteran’s hearing loss was less likely as not related to service because the Veteran had normal hearing bilaterally at separation and because there was no significant threshold shift noted between entrance and separation threshold shift. The examiner also opined that the Veteran’s pre-existing left ear hearing loss was not aggravated beyond normal progression. The Board finds the May 2014 opinion insufficient to allow the Board to determine whether the Veteran is entitled to service connection for bilateral hearing loss. In this regard, the opinion that the Veteran had no permanent positive threshold shifts may be based on an inaccurate factual premise, in that it is unclear to the Board whether the examiner considered the in-service audiometric data under both ASA and ISO-ANSI standards, relying on the unit measurements most favorable to the Veteran’s appeal. In this regard, the Board notes that the previous practice of VA was to assume ISO-ANSI standards were used after 1967. As noted above, when the November 1970 data is considered under the ASA standard and converted to the ISO-ANSI standard, the separation audiogram appears to show significant threshold shifts at multiple frequencies when compared to the Veteran’s March 1969 entrance examination. It is not clear whether the examiner considered this evidence in rendering the negative nexus opinion. In light of the foregoing, the claim must be remanded for an addendum opinion regarding the etiology of the Veteran’s diagnosed bilateral hearing loss. See 38 C.F.R. 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence...is essential for a proper appellate decision”). Additionally, the examiner reviewed and relied on “personal hearing conservation records” dated from March 1979 to May 2010 provided by the Veteran during the examination. There are no such hearing conservation records associated with the claims file. When VA is put on notice of the existence of relevant private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Because it appears that there may be outstanding private medical records that contain information pertinent to the Veteran’s bilateral hearing loss claim, on remand, an attempt should be made to obtain those records. The matter is REMANDED for the following action: 1. Request that the Veteran provide sufficient information, and if necessary, authorization in order to obtain any additional private treatment records pertinent to the claim on appeal that are not currently of record. Specifically ask the Veteran to provide copies of, or authorization to obtain, the private hearing conservation records dated from 1979 to 2010 reviewed by the May 2014 VA examiner. Additionally, obtain and associate with the Veteran’s claims file all outstanding VA treatment records documenting treatment for hearing loss dated from June 2016 to the present. 2. After all available records have been associated with the claims file, obtain an addendum opinion regarding the nature and etiology of the Veteran’s diagnosed bilateral hearing loss. The claims file and a copy of this REMAND must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s current bilateral hearing loss is related to his military noise exposure, to include whether the Veteran’s pre-existing left ear hearing loss was aggravated beyond normal progression in military service. In so opining, the examiner must do the following: (a) Consider the converted ASA to ISO-ANSI standards in evaluating the results of the in-service audiograms. (b) Review and comment on the in-service audiograms of record and discuss any shifts in hearing thresholds between the Veteran’s entrance audiogram in February 1969 and his separation audiogram in November 1970. (c) Explain the significance of the absence or presence of threshold shifts and severity of such threshold shifts in relation to the likelihood that military noise exposure caused permanent hearing damage. (d) Explain the significance of normal hearing in relation to the likelihood military noise exposure caused permanent hearing damage, including addressing theories of delayed/latent onset of hearing loss. For purposes of this opinion, the examiner should presume that the Veteran suffered an “in-service injury” of acoustic trauma. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s medical history and the relevant sciences as applicable to this case, which may reasonably explain the medical guidance in this study of this case. 3. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel