Citation Nr: 20043795 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 12-24 827 DATE: June 29, 2020 ORDER Entitlement to service connection for left ear hearing loss, is denied. Entitlement to service connection for lower abdominal disorder, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 29, 2015, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that left ear hearing loss began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that lower abdominal disorder began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran’s service-connected disabilities do not prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for lower abdominal disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to TDIU prior to July 29, 2015, have not been met. 38 U.S.C. § §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2003 to June 2003 and November 2005 to July 2010. The Board observes that in March 2020, the RO granted the Veteran’s claim for service connection for asthma with bronchitis. Therefore, this issue is no longer before the Board. In January 2020, the Board remanded the claims on appeal for additional development, to include obtaining VA examinations. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was provided with a VA examination for his hearing loss and lower abdominal pain in January 2020, and the report is adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Service Connection 1. Entitlement to service connection for left ear hearing loss 2. Entitlement to service connection for lower abdominal disorder The Veteran asserts that his abdominal pain and left ear hearing loss are due to his active duty service. Specifically, he contends that his hearing loss is related to noise exposure of weapons in service. He also asserts that his lower abdominal disorder stems from being in close quarters performing hand to hand combat which caused a tare to the lower abdominal muscle. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309, 3.310, 3.385. 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 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). As an initial matter, regarding the Veteran’s exposure to an in-service acoustic trauma, the Board finds that the Veteran’s credible statements pertaining to his exposure to loud noises, including gunfire, is consistent with the duties and circumstances of serving as a small arms instructor. Therefore, for purposes of hearing loss, in-service noise exposure is conceded. Next, the Board observes that the Veteran’s service treatment records reflected symptoms of hearing loss during service. The Veteran’s separation examination notes that the Veteran had “significant high frequency hearing loss.” The Veteran’s audiogram from May 2010 showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 35 30 40 40 25 However, the Veteran’s September 2011 audiological examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 20 15 20 25 Here, there were no significant tonal threshold shifts for the Veteran’s hearing, and even demonstrated improvement at some of the frequencies between his May 2010 audiogram and his September 2011 audiogram. With respect to a lower abdominal disorder, the records are silent for any complaints, symptoms, or a diagnosis of a disorder. Of note, the Veteran’s May 2010 separation examination do not reveal any signs, symptoms, complaints, or a diagnosis of an abdominal disorder. The Board observes that while the Veteran reported symptoms of a hearing loss and lower abdominal disorder shortly after service, the Veteran’s objective post-service medical evidence does not reflect symptoms and/or a diagnosis of these disorders until approximately 2011. Therefore, continuity of symptoms has not been shown based on the clinical evidence, to include the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While the Veteran is competent to report that he experienced symptoms, including pain, limitation of motion, and decreased ability to hear, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that the Veteran’s disorders have persisted since service, the Board determines that the reported history of continued symptoms while competent, is nonetheless insufficient to establish a relationship between his complaints and active service. Therefore, the statements from the Veteran is insufficient on their own to establish service connection for these disorders. Although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorders on appeal, service connection may nonetheless be established if a relationship is otherwise demonstrated by competent evidence, including medical evidence and opinions. Nevertheless, the Board finds that the evidence, including medical or otherwise, is insufficient to establish service connection. In this case, the Board places significant probative value on the opinions from the January 2020 VA examiner that performed a detailed review of the Veteran’s service and medical treatment records, as well as a comprehensive physical examination. Regarding the Veteran’s left ear disorder, the January 2020 VA examiner opined that the left ear hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner specifically based his/her reasoning on the entrance examination, which showed normal hearing acuity. The examiner noted that the May 2010 separation examination showed mild hearing loss at all test frequencies except for borderline normal hearing at 4KHz; this was an air conduction threshold check only. The Veteran’s post-service September 2011 audiogram examination reflected normal hearing acuity at all test frequencies. As such, the examiner opined that this suggests that 2010 hearing loss was temporary and/or conductive. At the Veteran’s January 2020 VA examination, a valid examination was unobtainable given the inconsistencies, and a diagnosis of hearing loss could not be confirmed. With respect to the lower abdominal disorder, the January 2020 VA examiner determined that it was not related to service. In support, the examiner noted that on examination he showed no tenderness to palpation of the left groin and left lower abdominal muscles. His pelvis and left hip x-rays showed mild left hip degenerative arthritis, which could be the etiology for the clicking in the left hip. The examination did not reveal an apparent muscle injury. Therefore, due to lack of documented evidence in the claims file as well as no objective findings of an abdominal groin muscle injury, a nexus has not been established. As part of this claim, the Board recognizes the statements from the regarding the relationship between his disorders and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as pain, limitation of motion, and decreased hearing, he is not competent to provide a nexus opinion in this case. These issues are also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claims of service connection, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 3. Entitlement to a TDIU prior to July 29, 2015 The Veteran asserts that he is unable to work because of his service-connected disabilities. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Further, the Board should also consider whether given the Veteran’s history, education, skill, and training, in conjunction with the Veteran’s physical ability and mental ability, can perform the type of activities required by the occupation at issue. See Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). After a review of the evidence of record, the Board determines that TDIU is not warranted. As an initial matter, the Board finds that the Regional Office complied with the January 2020 remand order by requesting the Veteran to complete the TDIU form (VA Form 21-8940). However, the Veteran did not complete the form as of this date. Further, the record, including the Veteran’s September 2011 VA examination, reflects that the Veteran was working full-time prior to July 29, 2015. According to his VA examination, the Veteran reported that post-service he was enrolled in college courses online and he was almost finished with his bachelor’s degree in Criminal Justice. Additionally, he reported working two jobs immediately after leaving service. In May 2015, a medical reported stated that the Veteran was employed and working. According to his February 2020 VA examination, he has been working full-time as a Fisheries Surveyor. In this case, the record does not indicate any period in which he was not working during the period on appeal. While the Board acknowledges the Veteran’s August 2015 and October 2016 reflect that the Veteran’s shoulder and back disorder impaired his ability to perform physical labor. However, there was no indication that the Veteran could not perform sedentary work. In arriving at this conclusion, the Board has also considered whether the Veteran was receiving only a marginal income and/or working in a protected environment. However, the Board observes that the Veteran failed to complete his VA Form 21-8940 or submit any relevant evidence with respect to his income and/or job duties. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (The duty to assist is not a one-way street; a claimant cannot stand idle when the duty to assist is invoked by failing to provide important information or otherwise failing to cooperate). As such, given that the Veteran is working full-time and there is insufficient evidence that he is receiving only a marginal income or working in a protected environment, the weight of the evidence is against the Veteran’s TDIU claim. Therefore, the Veteran’s TDIU claim is denied. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. McGee, Associate Counsel