Citation Nr: 1817072 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-04 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran had active service from September 1967 to July 1969, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2016, the Board denied entitlement to service connection for bilateral hearing loss disability, tinnitus, and an eye disability, as well as TDIU. The Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In a June 2017 Order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the portion of the Board's decision denying entitlement to service connection for bilateral hearing loss and tinnitus and entitlement to a TDIU, and remanding these issues back to the Board for further development and readjudication in compliance with directives specified. The issue of entitlement to service connection for an eye disorder was dismissed. The case has now been returned to the Board for adjudication. In the August 2013 remand, the Board identified the issue of service connection for peripheral neuropathy of the upper extremities as having been raised by the record (by VA Form 21-526 received May 23, 2006), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran's bilateral hearing loss disability is attributable to service. 2. Resolving reasonable doubt in his favor, the Veteran's tinnitus is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veteran's claims for entitlement to service connection for a bilateral hearing loss disability and tinnitus are being granted herein. As such, the Board finds that any error related to the VCAA with regard to this claim is moot. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection The Veteran seeks service connection for a bilateral hearing loss disability and tinnitus. After a review of the claim file and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for both claimed disabilities. Service connection may 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, 3.304. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service- the so-called "nexus" requirement. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. When a Veteran has engaged in combat with enemy forces, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the Veteran. See 38 U.S.C. § 1154 (b). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. See also 38 C.F.R. § 3.304 (d). A. Bilateral Hearing Loss Disability Here, the Veteran contends that his bilateral hearing loss disability is related to noise exposure in service. At the outset, the Board notes that in-service noise exposure has been conceded. The Veteran's MOS was a gunner and he served in the Republic of Vietnam. He was also awarded the Combat Infantry Badge and a Bronze Star. This is prima facie evidence of his combat service, meaning conclusive evidence he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See Moran v. Peake, 525 F.3d 1157 (Fed. Cir. 2008). Furthermore, the record shows that the Veteran currently has a bilateral hearing loss disability for VA purposes. Therefore, the remaining question is whether the currently diagnosed bilateral hearing loss disability is related to service. In this regard, upon consideration of the Veteran's in-service noise exposure and his combat duties, and the lack of any considerable post-service noise exposure, the Board finds that the Veteran's currently diagnosed bilateral hearing loss disability is traceable to military service and service connection for bilateral hearing loss disability is warranted. The Board acknowledges the October 2013 VA examiner's opinion that the Veteran's bilateral hearing loss disability is not at least as likely as not caused by or a result of an event in military service. However, the reasoning provided is inadequate and accords it little probative weight. Indeed, the examiner based the opinion primarily on the fact that there were no significant threshold shifts during service, and the Veteran indicated no hearing problems at separation. However, the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley, supra. The Board is left with a record which shows the Veteran was a combat veteran who was exposed to noise in service and who currently has a bilateral hearing loss disability which cannot be conclusively disassociated from his noise exposure in service. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Tinnitus In addition, the Board finds that entitlement to service connection for tinnitus is warranted. In a January 2010 statement, the Veteran indicated that he has a constant ringing/buzzing in both of his ears. Of in-service onset, he states, "As for service medical records not containing evidence of trauma, who was I to complain to about this ringing, the medic assigned to us who would say I was nuts and probably everyone in the company had tinnitus . THIS RINGING IS CONSTANT AND NEVER GOES AWAY" (emphasis in the original). As discussed above, the Veteran's in-service noise exposure is conceded. The Veteran is competent to report that he has experienced tinnitus in and since service; a veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1995); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Here, the Board finds that the Veteran is competent to report noise exposure and ringing in the ears. Moreover, as noted above, the Veteran's MOS was a gunner and is a combat veteran. The Board is aware that the October 2013 VA examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure because the Veteran indicated that his tinnitus began only in the past several years, and he was unable to specify an event or circumstance while in service which may have led to the onset. However, as discussed above, the examiner's reasoning is not supported by the record. The Veteran's January 2010 statements indicate ringing in the ears since service, and his experience being exposed to loud noises while in service is conceded. The Board finds the Veteran's assertions to be credible. Moreover, regardless of when the tinnitus started, the Board notes that the examiner did find that the Veteran's tinnitus is at least as likely as not a symptom associated with his clinical hearing loss, as tinnitus is known to be a symptom associated with hearing loss. As the Board is now granting service connection for a bilateral hearing loss disability, the Veteran could also merit service connection for tinnitus on a secondary basis. See e.g. 38 C.F.R. § 3.310 (a). Therefore, service connection for tinnitus is warranted either as due to service or due to the now service connected hearing loss disability. Accordingly, when resolving all doubt in the Veteran's favor, service connection for tinnitus is granted. ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus is granted. REMAND The Board finds that additional development is needed prior to adjudicating the Veteran's claim for a TDIU. Specifically, the Board finds that a new opinion is needed to address whether all of the Veteran's service-connected disabilities prevent employment. The October 2013 VA examiner did not provide sufficient rationale regarding the opinion that the "combined impact" of the service-connected disabilities do not prevent gainful employment. Specifically, the October 2013 VA examiner's rationale noted that the Veteran retired on his own, which appears to be contradicted by the October 2013 Psychiatric VA examination and the January 2010 Psychiatric VA examination, both of which noted that the Veteran was terminated from his position. Additionally, the rationale provided is not sufficient because the relevant inquiry is not whether the Veteran was able to work previously, but whether the severity of the service-connected disabilities prevents substantial gainful employment at any point during the pendency of the appeal. In addition, there was not substantial compliance with the Board's August 2013 remand directives. See Stegall v. West, 11 Vet.App. 268 (1998). In the August 2013 decision, the Board remanded the claim for TDIU for the RO to "arrange for the Veteran to be examined by an appropriate physician to ascertain the combined impact of his service-connected disabilities on his employability." The Board ordered the examination to "identify the types of employment that would be precluded by the service-connected disabilities and those (if any) that remain feasible despite the disabilities." The October 2013 VA examiner failed to comply with this remand instruction, as the examiner did not identify types of work that would be precluded by the service-connected disabilities or identify the types of work that would be feasible despite the service-connected disabilities. The Board is aware that the Veteran's representative has submitted an employability evaluation from a private consultant. This evaluation states that by 2012, the Veteran was experiencing a combination of symptoms from service-connected disabilities that at least as likely as not prevented him from securing and following any substantially gainful occupation. The private evaluator stated that although the Veteran continued working part-time until 2014, his earnings as reported are only marginal from 2012 through 2014 and do not represent substantially gainful employment. However, the evaluator's opinion does not extend to the entire period on appeal and the Board notes that FICA earnings for the Veteran show a significant drop in earnings beginning in 2006. Given this, and because of the shortcomings of the October 2013 examination, the Board finds that a new opinion is necessary in order to determine if the Veteran qualifies for a TDIU during the entire period on appeal. Accordingly, the appeal is REMANDED for the following action: After completing any necessary development, the RO should arrange for the Veteran to be examined by an appropriate examiner to ascertain the combined impact of his service-connected disabilities on his employability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: What is the combined impact of the Veteran's service-connected disabilities on the Veteran's employability? Specifically, do they render him incapable of participating in any substantially gainful employment consistent with his education and occupational experience (but disregarding his age as that is not a factor for consideration). Please identify the types of employment that would be precluded by the service connected disabilities and those (if any) that remain feasible despite the disabilities. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans' Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs