Citation Nr: 18158670 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-36 186 DATE: December 17, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. A total disability rating based on individual employability due to service-connected disability (TDIU) prior to June 5, 2017 is granted. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s bilateral hearing loss and tinnitus are related to noise exposure during service. 2. Prior to June 5, 2017, the evidence is at least in equipoise that the Veteran’s service-connected disabilities precluded his gainful employment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. Prior to June 5, 2017, the criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341(a), 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from September 1968 to October 1972, to include service in Vietnam from October 1969 to February 1970. His decorations include the Vietnam Service Medal. The Veteran’s appeal with respect to hearing loss and tinnitus comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Newington, Connecticut. The appeal with respect to a TDIU comes before the Board on appeal from a June 2015 rating decision of the RO in Columbia, South Carolina. In an August 2016 letter following a notice of disagreement, the Veteran withdrew his claims for increased ratings for post-traumatic stress disorder (PTSD) and diabetes mellitus. These claims are not presently in appellate status. Service Connection In general, the relevant law provides that a veteran be entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred in or aggravated by service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a “disability” when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. A layperson is competent to report on the onset and continuity of 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). The Veteran seeks to establish service connection for tinnitus and bilateral hearing loss. He maintains that both disabilities can be attributed to noise exposure in service. A November 2014 audiological examination establishes that the Veteran has a current bilateral hearing loss disability that satisfies the criteria under 38 C.F.R. § 3.385. As such, the current disability element is met. It is also not in dispute that he has tinnitus; tinnitus is a disability capable of lay observation (by the person experiencing it). See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds no reason to question the Veteran’s accounts that he experiences ringing in his ears. The Board also concedes that the Veteran was exposed to some degree of noise during active service while working as an inventory clerk. While this military occupational specialty (MOS) generally is not associated with acoustic trauma, the Veteran has reported that while serving in Vietnam he was exposed to artillery fire, heavy vehicles, and helicopters. See DD-214; see also September 2016 correspondence. Moreover, the November 2014 examiner noted the Veteran’s other duties as military policeman and motor vehicle operator indicated a moderate probability of noise exposure. The Veteran is competent to report that he experienced noise exposure during service, and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. Accordingly, the Veteran’s in-service exposure to noise is conceded. Service treatment records (STRs) are silent for complaints of, treatment for, or diagnosis of tinnitus while the Veteran was in active service. Regardless, the Veteran has stated that he first experienced symptoms of hearing loss and tinnitus during and immediately following active service, and that his symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Significantly, although his hearing was within normal limits at separation, his STRs contain an April 1968 audiogram that is abnormal, bilaterally. As to the nexus between the Veteran’s currently shown disabilities and service, the Board notes that the Veteran is competent and credible to provide statements with respect to the onset, continuity, and presence of tinnitus and hearing loss, inasmuch as the symptoms of such are observable by a lay person. While the Board acknowledges the negative nexus opinion provided by the November 2014 VA examiner, the Board finds that the Veteran is competent to report hearing problems and ringing in the ears during service and since that time. Moreover, the Board finds that the Veteran’s reports of noise exposure during his period of service and hearing problems since service, as well as the reports of his wife that the Veteran has suffered hearing problems since his service in Vietnam are credible. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Given the competent and credible statements from the Veteran and his wife, taken together with the circumstances of the Veteran’s service, the Board finds that the balance of favorable and unfavorable evidence is in equipoise. As such, the Board resolves doubt in favor of the Veteran and finds that the Veteran’s bilateral hearing loss and tinnitus was caused by his in-service noise exposure. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). TDIU The Veteran contends that his service-connected disorders prevent him from engaging in substantially gainful employment and, therefore, that he is entitled to a total disability rating. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant’s service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Prior to June 5, 2017, the Veteran's service-connected disabilities satisfy the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). As will also be discussed below, the Veteran has a combined 100 percent schedular rating from June 5, 2017 onward. A review of the record shows that the Veteran has three years of college education with a work history that included loader, maintenance worker, and lineman. He is currently unemployed. It is his contention that he cannot maintain substantially gainful employment due to service-connected disabilities, including PTSD and diabetes. See January 2015 Veteran’s Application for Increased Compensation Based on Unemployability. He also reports that his hearing loss and tinnitus severely inhibit his ability to work. See September 2016 correspondence. During a June 2011 VA examination, the examiner noted a decline in occupational functioning in the last five years as PTSD and depression had worsened with chronic pain. Following a June 2015 VA examination, the examiner noted psychiatric symptoms including low frustration tolerance, difficulty maintaining concentration, chronic sleep disturbance, persistent fatigue, anxiety, and low motivation. The examiner found that each of these difficulties would cause serious problems for him in an occupational environment. A second June 2015 VA examiner opined that the Veteran’s current functional status permitted employment, but was obviated by avoidance of prolonged activity due to service-connected diabetes mellitus and coronary artery disease. In March 2017, a private vocational rehabilitation counselor concluded that it was at least as likely as not that the Veteran’s service-connected disabilities had prevented him from obtaining or maintaining substantially gainful employment since 2009. The social worker, after reviewing the claims file and interviewing the Veteran, noted the Veteran was unable to work due to his PTSD and the physical limitations imposed by his heart condition. Finally, in a June 2017 VA examination, the examiner opined that the Veteran was unable to perform work of a physical nature because of his service-connected diabetic peripheral neuropathies. As indicated above, the competent and probative evidence demonstrates that the Veteran’s service-connected disabilities, notably his PTSD, diabetes, and coronary artery disease, are productive of significant symptomatology that can be said to preclude substantial and gainful occupation. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unemployable prior to June 5, 2017. Therefore, the benefit of the doubt doctrine applies and a TDIU will be granted. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). As indicated above, the Board notes that the Veteran is in receipt of a 100 percent combined schedular rating as of June 5, 2017. A TDIU rating is contingent on the schedular rating being less than total. 38 C.F.R. § 4.16(a). However, in Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) held that the issue of entitlement to a TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where special monthly compensation (SMC) could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court’s decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis of an award of SMC. This case, however, is distinguished from Bradley in that the grant of the Veteran’s TDIU is not predicated on a single disability but is predicated on multiple service-connected disabilities. Specifically, the grant of entitlement to a TDIU is based largely in part on the aforementioned March 2017 private vocational report and multiple VA examinations documenting the severity of the Veteran’s PTSD, diabetes mellitus, and coronary artery disease. Therefore, this grant of TDIU is based on impairment from several service-connected disabilities, and not just a single disability. Therefore, as the Veteran has no individual service-connected disability that is rated at 100 percent, and the Veteran’s TDIU is predicated on multiple service-connected disabilities, the percentage rating criteria for SMC at the housebound rate have not been met at any point during the period of time on appeal. As such, entitlement to TDIU is being granted for the period prior to June 5, 2017, the date before his schedular rating reached a total combined 100 percent. The issue of entitlement to TDIU from June 5, 2017, to the present is considered moot, as the Veteran is already in receipt of a combined scheduler evaluation of 100 percent, effective June 5, 2017, and the findings in Bradley are not applicable in this case. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel