Citation Nr: 18143630 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-24 708A DATE: October 19, 2018 ORDER New and material evidence has not been presented and the claim of entitlement to service connection for a low back disability is not reopened. Service connection for a bilateral hearing loss is denied. Service connection for tinnitus is granted. Service connection for a respiratory condition is denied. TDIU is denied. FINDINGS OF FACTS 1. The January 2004 rating decision denying the Veteran’s claim of entitlement to service connection for a low back disability is final. 2. Evidence received since the January 2004 rating decision is not material, and fails to raise a reasonable possibility of substantiating the Veteran’s claim for service connection for a low back disability. 3. The Veteran’s bilateral hearing loss was not shown to have occurred in service, did not manifest for several years thereafter, and is not shown to have been caused by service, to include as a result of any military noise exposure therein. 4. The evidence is a least evenly balanced as to whether tinnitus was incurred in service. 5. The Veteran does not have any objective manifestations of a chronic respiratory disorder, nor is it shown that she has a respiratory disability that is related to her active service, to include an undiagnosed illness or medically unexplained chronic multi-symptom illness. 6. The Veteran does not meet the schedular requirements for TDIU, nor does the evidence show that she is unable to obtain or maintain substantially gainful employment as a result of her service-connected disabilities. CONCLUSIONS OF LAW 1. The January 2004 rating decision denying the Veteran’s claim for service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence pertaining to the Veteran’s low back condition have not been submitted, and the Veteran’s claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 5. The criteria for service connection for chronic respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.317. 6. The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to October 2003. This matter is on appeal from a December 2013 rating decision. Reopening a Claim Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.§ 5108. New evidence means 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 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Veteran’s claim for entitlement to service connection for a low back disability was denied in a January 2004 rating decision. At the time, the record included service treatment records that show a low back strain in March 1993. It also showed that the injury was found to be temporary and had resolved by the time of separation. The record also contained an October 2003 VA examination, which found no physical impairment of the back. Evidence received since the January 2004 rating decision includes updated VA treatment records. A June 2010 VA record showed a history of chronic mid-back pain. Imagining results revealed moderate levoconvex curvature of the lumbar spine. An August 2012 VA examination report indicated that the Veteran’s lumbar spine showed no signs of kyphosis or lordosis in the sagittal plane. A November 2012 lumbar spine x-rays showed that the ‘levocurvature’ of the lumbar spine is more pronounced than it was in 2007. However, vertebral bodies demonstrate normal height and alignment, and there was no evidence of fracture or spondylolisthesis. There was no significant disc space narrowing. By December, a VA physician noted that the Veteran’s lumbar curve is progressive and that it could cause worsening pain over the years, although progression over the previous five years had been minimal. January 2013 VA treatment records noted that the Veteran expressed concerns over her lumbar rotation. She reported having experienced back pain for 10 years, and indicated that working with therapy and had led to some improvement with no significant worsening. An objective study revealed no pain with motion or palpation. In July 2013, a VA treatment report showed excessive lumbar lordosis, but the Veteran demonstrated range of motion within normal limits. Finally, the Veteran submitted a biomechanical assessment of her lumbosacral/pelvic area. It shows no osseous or periosteal injury. Some degenerative changes were noted at L2 and L5. There was also scoliosis with convexity of the spine to the left with an elevated right pelvis. However, the report is undated and unsigned. The Board notes that evidence submitted since the January 2004 rating decision is new. The VA treatment records clearly show that the Veteran suffers from a progressing curvature of her lumbar spine, which has caused her pain. However, the Board finds that the new treatment records are not material as they fail to suggest a nexus between the Veteran’s back condition and her military service. Other than her own lay assertions, the record does not contain any objective medical opinion that would relate the Veteran’s in-service back strain and her current problems with the curvature of her lumbar. While the threshold for reopening a claim is low, it is a threshold nonetheless and as described the evidence that has been added since January 2004 clearly does not reach that threshold. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Accordingly, the request to reopen the previously denied claim for service connection for a low back condition is denied. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Bilateral Hearing Loss Hearing loss, if sensorineural in nature, is a “chronic disease” listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran’s service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). It is the Veteran’s contention that she sustained hearing loss due to her military service. However, audiometric testing in April 2002 while in service showed hearing within normal limits in both ears. Post-service, in October 2010, an audiogram showed a slight change in hearing acuity, but the results of the audiometric testing still showed hearing within normal limits. Her puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 30 25 30 LEFT 5 30 25 30 That is, even seven years after separation, audiometric testing did not show the presence of hearing loss in either ear for VA purposes. Then, in November 2011, the Veteran visited a VA audiology clinic complaining of hearing loss. She reported being exposed to hazardous military noise during active duty. Audiometric testing showed mild to moderate sensorineural hearing loss. Another audiometry reading in August 2012 conducted in Germany showed a decline in hearing. Her puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 40 45 45 LEFT 30 40 45 45 The average puretone threshold of the right ear is 40dB and 40 dB in the left ear. However, while the physician diagnosed bilateral hearing loss, he concluded that it could not have been caused by the Veteran’s military noise exposure. The physician acknowledged that the Veteran served between 1983 to 2003 and saw actual combat during Desert Storm in 1990-1991. During service, she worked in air defense and artillery, during which time she was exposed to extreme noise. However, the Veteran’s hearing test results from 1982, 1992, and 2002 documented largely normal hearing. The Veteran’s hearing loss facts do not fit noise-induced inner ear damage. The doctor explained that, in general, noise-induced hearing loss presents while a patient is exposed to noise, but once the noise exposure ends, there is no further damage to the inner ear. Here, the Veteran’s first sign of hearing loss was not noted until 2010, which is several years after separation from service. Furthermore, hearing loss at all frequencies also weighs against a noise-induced hearing loss. Noise induced hearing loss typically affects hearing in high frequencies. However, in the Veteran’s specific case, her low frequencies were also reduced. Causes for sensorineural hearing loss can include lipometabolism disturbances, blood flow disturbances, or even cervical spine syndrome, but inner ear damage from exposure to noise is ruled out. After the December 2013 rating decision denied the Veteran’s claim for service connection, the Veteran filed a Notice of Disagreement, asserting that since the VA examiner noted that sensorineural hearing loss may be caused by cervical spine syndrome, additional development was needed, as the Veteran is service connected for a cervical spine condition. As a result, she was afforded another VA examination in June 2014. There, her puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 30 40 LEFT 20 35 30 35 Speech audiometry revealed speech recognition of 96 percent in the right ear and 100 percent in the left ear. The examiner confirmed sensorineural hearing loss in both ears. Unlike the prior examination, the VA examiner opined that the Veteran’s hearing loss is related to noise exposure during her active service. Given the conflicting results, another VA examination conducted in June 2014 regarding the Veteran’s ear conditions. In the Veteran’s claim for service connection for dizziness/vertigo, she underwent a physical examination, where she was diagnosed with Meniere’s syndrome. The VA examiner found that her hearing impairment was a symptom attributable to Meniere’s syndrome. The examiner also noted that only the Veteran’s headaches were related to her cervical spine degenerative disc disease. In weighing the evidence of record, the Board finds that service connection for a bilateral hearing loss is not warranted. The Board acknowledges that there are conflicting examination reports on file. However, the Board finds great probative value in the August 2012 examination report and the June 2014 VA examination report addressing the Veteran’s Meniere’s syndrome. Together, the reports provide a more complete explanation with adequate supporting rationale as to the cause of the Veteran’s hearing loss. The August 2012 took into consideration the Veteran’s lay statements, past medical records, and her current diagnosis. While it may have suggested a secondary cause for the Veteran’s hearing loss, the June 2014 VA examination report offered a conclusive explanation, indicating that the Veteran’s cervical spine condition did not cause the Veteran’s bilateral hearing loss. In contrast, the June 2014 VA examination pertaining to the Veteran’s hearing loss merely stated a positive nexus between hearing loss and hazardous military noise without adequate rationale, nor did it offer an explanation as to the Veteran’s delayed hearing loss so many years after service. Finally, while the Veteran has also argued that her bilateral hearing loss may be secondary to TBI, this claim is also not warranted as she is not service connected for a TBI. Based on this conclusion, the evidence is against a finding that the Veteran’s bilateral hearing loss either began during or was otherwise caused by his military noise exposure. Therefore, the criteria for service connection have not been met, and the Veteran’s claim is denied. 2. Tinnitus It is the Veteran’s contention that she developed tinnitus during service. Post service, the Veteran continued to complain of constant tinnitus. In November 2011, the Veteran described it as constant ringing in her ears, sounding tinny. She reported being exposed to hazardous military noise during active duty. In an August 2012 VA medical report, the Veteran was evaluated for tinnitus in both ears. She reported high-pitched noise that is sometimes amplified by outside sounds. Whenever there is loud noise in her surroundings, her tinnitus becomes more pronounced. After examination, the VA physician concluded that the Veteran’s level of tinnitus is not severe enough to be considered a disability, although further research is needed to clarify possible risk factors and causes with regard to the diagnosed hearing loss. The Veteran continued to report tinnitus in her June 2014 VA examination. There, she indicated that it had started several years prior and that it had worsen in 2010. The examiner opined that it was at least as likely as not related to her military noise exposure. He noted that the Veteran was exposed to hazardous noise during service and that her tinnitus worsened in the years after such exposure. The record contains both positive and negative evidence regarding the onset of tinnitus. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran’s statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds the Veteran’s testimony as to the onset of her tinnitus credible, and she has credibly reported that her tinnitus began in-service and has continued to the present time. The Veteran has not attempted to bolster or exaggerate her symptoms. As such, the criteria for service connection for tinnitus have been met and the claim is granted. 3. Respiratory Condition The Veteran as asserted that she suffers from a respiratory condition as a result of her military service. The Veteran’s service records show that she meets the criteria for consideration as a Persian Gulf veteran for purposes of 38 C.F.R. § 3.317. Under this regulation, service connection may be established for a disability due to undiagnosed illness of a Veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War. In order establish service connection on that basis, there must be objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. Such illness must become manifest during either active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, during the presumptive period prescribed by the Secretary. The period within which such disabilities must become manifest to a compensable degree in order for entitlement to compensation to be established is currently December 31, 2016. See 38 C.F.R. § 3.317 (a)(1)(i). In order to qualify, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a), (b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria for a medically unexplained chronic multi-symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this section, the term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, “objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Service treatment records are silent for any respiratory condition. On a report of medical history that was completed in April 2003 at time of separation, the Veteran reported experiencing shortness of breath, but she specifically denied having tuberculosis, asthma, bronchitis, wheezing, chronic coughing, or the use of any inhaler. A report of medical examination also found no clinical abnormalities relating to her lungs and chest. Post service, the Veteran’s treatment records do not reflect treatment or a diagnosis of any respiratory condition. Other than the Veteran’s own statements, there is no objective evidence that would suggest a current diagnosis of a respiratory condition. Based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for a respiratory condition. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the evidence of record fails to show the Veteran has been diagnosed with a respiratory disorder or that she has found to have respiratory symptoms that constitute a medically unexplained chronic multi-symptom illness. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b); Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Veteran’s compensable service connected disabilities are cervical spine disorder, rated at 30 percent, PTSD, rated at 30 percent, right knee instability rated at 10 percent, left knee instability rated at 10 percent, right ankle fracture at 10 percent, and uterine fibroids at 10 percent. She is also service connected for a bilateral great toe bunion and calluses, right great toe fracture, tinea versicolor, and tension headaches, which are all rated as noncompensable. The Veteran has a combined disability rating of 70 percent. However, she does not meet the schedular criteria for TDIU as she does not have a single service connected disability that is rated at least at 40 percent. As the Veteran does not meet the schedular criteria for TDIU, the Board must consider whether the Veteran has nevertheless demonstrated that she is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16 (b). After a review of the competent evidence of record, the Board finds that referral for extraschedular consideration of a TDIU rating is not warranted. In a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received November 2012, the Veteran reported that she last worked in November 2011 but had become too disabled to work that following month in December 2011. She indicated that the most she ever earned was $87,000 as a training specialist in 2009. She was employed as a training specialist from 2008 to 2011, earning $6,272 per month, and a supply specialist from 2005 to 2008, earning $4,119 per month. The Veteran was counseled for employability in November 2004. At time of the narrative report, her combined disability rating at the time was 40 percent. The Veteran had applied for vocational rehabilitation services because she sought to acquire training so that she could further her career options in employment. The counselor noted that the Veteran has clear impairment on her employability as she should not lift more than 10 pounds or sit, stand, walk for prolong periods of time. She has also been advised to stay away from kneeling, overhead lifting, crouching, and climbing stairs. However, after a thorough review of the Veteran’s file, the counsel found that the Veteran’s disabilities do not cause severe impairments of her functional abilities and there is no indication of a neuropsychiatric condition. She has reasonable developed job skills and she has maintained a stable work history. She also graduated from the University of Oklahoma with a major in Human Relations. The counselor found that the Veteran did not need complex rehabilitation services and she did not need an extension of vocational rehabilitation services. In an August 2004 statement from a Counseling Psychologist, it was noted that the Veteran had previously stated that her job as a Supervisory General Supply Specialist did not aggravate her service connected disabilities. It was also noted that the Veteran had completed coursework for a BA degree in Business Administration and was due to receive her diploma in December 2004. Currently, the Veteran has not identified or submitted any competent evidence demonstrating that her service-connected disabilities, individually or in concert, preclude her from securing and maintaining substantially gainful employment so as to warrant the assignment of TDIU on an extraschedular basis. Given the Veteran’s work history and educational experience, the Board does not believe that the Veteran’s service connected disabilities would prevent her from obtaining or maintaining substantially gainful employment. While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support her claim that her service-connected disabilities alone are sufficient to produce unemployability. Although they produce some impairment, the evidence does not reflect substantially gainful employment is precluded solely due to the Veteran’s service-connected disabilities. (Continued on the next page)   Here, as described, the probative medical evidence of record is against a finding that it is at least as likely as not (50 percent or greater) that the Veteran is rendered unable to obtain or maintain substantially gainful employment due to her service-connected disabilities. Accordingly, TDIU on an extraschedular basis is not warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel