Citation Nr: 21000825 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 19-23 391 DATE: January 6, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to an initial compensable rating for hearing loss is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s has a current right ear hearing loss disability that is proximately due to acoustic trauma in service. 2. Throughout the appeal, the Veteran has had no worse than Level I hearing acuity in both ears. 3. The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. Throughout the appeal, the criteria for an initial compensable rating for hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. 3. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1979 to September 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In this regard, an October 2018 Board decision determined that the Veteran filed a timely Notice of Disagreement (NOD) with the rating decision on appeal. The AOJ subsequently issued a Statement of the Case (SOC) and the Veteran perfected this appeal. In October 2019, the Veteran testified at a videoconference hearing before the undersigned. In January 2020, the Board dismissed the appeal as to the issues of entitlement to an earlier effective date of service connection for left ear hearing loss, entitlement to a compensable rating for atrophy of the left testicle, and entitlement to a rating in excess of 10 percent for left varicocele; determined that reconsideration pursuant to 38 C.F.R. § 3.156(c) was warranted as to the claims of entitlement to service connection for a back disability, neck disability, and right ear hearing loss; and granted entitlement to service connection for a back disability, neck disability, and neurological disability of the left lower extremity. The Board also remanded the issues of entitlement to service connection for an acquired psychiatric disorder entitlement to service connection for right ear hearing loss, entitlement to an initial compensable rating for left ear hearing loss, and entitlement to a TDIU, to include on an extraschedular basis. Pursuant to a January 2020 rating decision, the AOJ implemented the awards of service connection granted in the January 2020 Board decision. Pursuant to a November 2020 rating decision, the AOJ granted entitlement to service connection for posttraumatic stress disorder (PTSD). Thus, these issues are no longer on appeal before the Board. If the Veteran disagrees with the initial ratings or effective dates of service connection assigned by the AOJ, or believes that service connection is warranted for disabilities not granted by the AOJ (to include secondary service connection for upper extremity radiculopathy), he may seek review of those decisions by filing the appropriate VA-promulgated form. 1. Entitlement to service connection for right ear hearing loss is granted. Initially, the Board asserts that there has been substantial compliance with the January 2020 remand directives. In this regard, the AOJ sought clarification from the October 2019 private audiological examiner as to the type of speech discrimination test used in the examination. See May 2020 Development Letter. The private audiologist responded by providing another copy of the October 2019 audiological examination report but did not indicate the type of test used. See June 2020 Medical Treatment Record. The AOJ responded by reiterating the prior request. See June 2020 Third Party Correspondence. The Veteran responded to the copy of the letter send to him by indicating where he received treatment. See June 2020 Report of General Information. Here, the AOJ made multiple requests for clarification as to the type of speech discrimination test used. The private provider did not include this information in its response. Thus, the AOJ has rendered adequate assistance in helping the Veteran develop his claim, notwithstanding that the information was not ultimately secured from the AOJ. In this regard, the Board emphasizes that here, the directive was not to secure a record from a private party, but rather to obtain clarification regarding the information in that record. In any event, the Board need not seek clarification from the private audiologist in this regard. In any event, the Board need not seek further clarification from the private audiologist in this matter. Specifically, if the Maryland CNC test was employed in the evaluation, the speech findings and audiometric data (Level I impairment in each ear, with no exceptional patterns of hearing loss pursuant to 38 C.F.R. § 4.86(b)) would not allow for a compensable rating. On the contrary, if the examiner responded in the negative, the examination would be inadequate for rating purposes. 38 C.F.R. § 4.85(a). Service connection may be established for a disability resulting from injury or disease incurred during or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s 1979 enlistment audiogram shows right ear pure tone thresholds of 10 decibels at 500 hertz, 5 decibels at 1000 hertz, 5 decibels at 2000 hertz, zero decibels at 3000 hertz, and zero decibels at 4000 hertz. See 1979 Enlistment Audiogram. A February 1981 audiogram shows right ear pure tone thresholds of 20 decibels at 500 hertz, 15 decibels at 1000 hertz, 10 decibels at 2000 hertz, 10 decibels at 3000 hertz, and 20 decibels at 4000 hertz. See February 1981 Audiogram. The Veteran’s September 1981 separation audiogram shows right ear pure tone thresholds of 15 decibels at 500 hertz, 15 decibels at 1000 hertz, 5 decibels at 2000 hertz, 5 decibels at 3000 hertz, and 15 decibels at 4000 hertz. See 19891 Separation Audiogram. Here, the Veteran’s service treatment records do not show a right ear hearing loss disability for VA compensation purposes in service. However, VA regulations do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. See Hensley v. Brown, 5 Vet. App. 155 (1993). An October 1989 VA audiology examination report shows right ear pure tone thresholds of 10 decibels at 5000 hertz, 10 decibels at 1000 hertz, 10 decibels at 2000 hertz, 10 decibels at 3000 hertz, and 15 decibels at 4000 hertz, with 96 percent right ear speech discrimination. See October 1989 VA Audiology Examination Report. In October 2012, the Veteran presented for a VA audiology examination. The examination report shows right ear pure tone hearing thresholds of 20 decibels at 500 hertz, 15 decibels at 1000 hertz, 10 decibels at 2000 hertz, 20 decibels at 3000 hertz, and 30 decibels at 4000 hertz, with 96 percent speech discrimination. The VA examiner opined that the Veteran’s hearing loss was at least as likely as not due to an event in service. See October 2012 VA Audiology Examination Report. These examination findings do not demonstrate a current right ear hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385. The Veteran submitted an October 2019 private audiological examination report. However, as the record does not show the test used for speech discrimination testing, the examination is not adequate for rating purposes. See 38 C.F.R. § 4.85(a). In September 2020, the Veteran presented for an audiological examination with a VA-contracted examiner. The examination report shows right ear pure tone hearing thresholds of 30 decibels at 500 hertz, 30 decibels at 1000 hertz, 25 decibels at 2000 hertz, 30 decibels at 3000 hertz, and 35 decibels at 4000 hertz, with 100 percent speech discrimination. See September 2020 Audiological Examination Report. Here, the September 2020 audiology examination report shows a current right ear hearing loss disability, as pure tone thresholds exceeded 26 decibels at 500, 1000, 3000, and 4000 hertz. Thus, the remaining question is whether this current disability is related to the Veteran’s service. In favor of the claim is the October 2012 examiner’s opinion. The examiner opined that the Veteran’s hearing loss was at least as likely as not caused by or a result of an event in military service, as the examiner noted significant threshold shifts as the higher frequency of 4000 hertz. See id. at 4. The October 2012 examiner’s opinion is probative. The examiner did not list the audiogram results shown in the September 1981 separation audiogram in the rationale and instead discussed the shift between the 1979 enlistment audiogram and the February 1981 audiogram. However, the examiner’s rationale is consistent with the 15-decibel threshold shift at 4000 hertz shown between the 1979 enlistment audiogram and the September 1981 audiogram, thus the record shows that the examiner’s opinion was premised on an accurate factual basis. In any event, the Board resolves this reasonable doubt in favor of the Veteran. Against the claim is the opinion of the September 2020 examiner. The examiner noted that the Veteran had a right ear positive threshold shift in service but opined that the Veteran’s right ear hearing loss was less likely than not due to service. The examiner explained that the Veteran had normal hearing upon separation from service and it is more likely that hearing loss would have manifested closer to separation from service, and noted the Veteran’s post-service carpentry work could have resulted in post-service hearing loss. The September 2020 examiner’s opinion is probative. Although the September 2020 examiner did not explicitly note the 1989 VA audiogram, the examiner’s rationale is consistent with the absence of a right ear hearing loss disability shown in that examination report. Thus, it is premised on an accurate factual basis. Moreover, while the examiner noted the absence of a hearing loss disability at separation, this is not the sole reason for the negative opinion, but instead represents part of the examiner’s logic for attributing hearing loss to post-service noise exposure. Here, there is no reason for the Board to prefer the one medical opinion over the other, as each examiner offered a competent opinion with a rationale based on an accurate factual basis. Accordingly, as the probative evidence of record is in equipoise, the Board resolves this reasonable doubt in favor of the Veteran and finds that entitlement to service connection for right ear hearing loss is warranted. 2. Entitlement to an initial compensable rating for hearing loss is denied. Initially, the Board observes that the issue remanded by the Board was entitlement to an initial compensable rating for left ear hearing loss and that the Veteran is now in receipt of service connection for bilateral hearing loss. However, the criteria for rating hearing loss automatically assign a hearing acuity level for a nonservice-connected ear, and in the present case the rating assigned by the AOJ when rating the Veteran’s then nonservice-connected right ear was Level I hearing acuity. As discussed below, Level I acuity is the same level of acuity assigned for the Veteran’s service-connected right ear, and thus he is not prejudiced by the Board considering this question and part of the appeal seeking an initial compensable rating for hearing loss. Hearing loss is evaluated under the criteria set forth in the VA Schedule for Rating Disabilities. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85, Table VI, Table VII. Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000-hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). Level I represents essentially normal acuity, and level XI represents profound deafness. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. In cases involving exceptional patterns of hearing impairment, defined as where the pure tone sensitivity threshold is equal to or greater than 55 decibels at each of 1000, 2000, 3000, and 4000-hertz or pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, then the veteran’s hearing threshold is also applied to Table VIA, which provides a numeric designation of hearing impairment based solely upon pure tone threshold average. For each ear with an exceptional pattern of hearing impairment, the more favorable (i.e., greater) numeric designator from either Table VI or Table VIA is then applied to Table VII. See 38 C.F.R. § 4.86. Here, there are two adequate audiological examination reports of record: the October 2012 examination report and the September 2020 examination report. As discussed above, the October 2019 examination report is not adequate for rating purposes, as the record does not show that Maryland CNC speech discrimination testing was conducted. The October 2012 examination report shows an average pure tone sensitivity threshold of 19 decibels in the right ear and 28 decibels in the left ear, with 96 percent speech discrimination bilaterally. This represents Level I hearing acuity in each ear. In this regard, the Veteran’s right ear would be represented as Level I hearing acuity regardless of whether it was rated as a service-connected or nonservice-connected. Application of Level I acuity in each ear to Table VII shows that a noncompensable rating is warranted. See 38 C.F.R. § 4.85, Table VII. Additionally, the Veteran did not have an exceptional pattern of hearing impairment, as he did not have thresholds of 55 decibels or greater at any frequency, or pure tone thresholds at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(b). The September 2020 examination report shows an average pure tone sensitivity threshold of 30 decibels in the right ear and 40 decibels in the left ear, with 100 percent speech discrimination bilaterally. This represents Level I hearing acuity in each ear. In this regard, the Veteran’s right ear would be represented as Level I hearing acuity regardless of whether it was rated as a service-connected or nonservice-connected. Application of Level I acuity in each ear to Table VII shows that a noncompensable rating is warranted. See 38 C.F.R. § 4.85, Table VII. Additionally, the Veteran did not have an exceptional pattern of hearing impairment, as he did not have thresholds of 55 decibels or greater at any frequency except 4000 hertz for the left ear, or pure tone thresholds at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(b). According, as the evidence does not show worse than Level I hearing acuity in either ear throughout the appeal, entitlement to an initial compensable rating for hearing loss is denied. The Board asserts that he has difficulty hearing out of his left ear and that it has frequent ringing. See, e.g., October 2019 Hearing Testimony at 14-15. However, he is in receipt of a separate 10 percent rating for tinnitus and difficulty understanding speech is the type of impairment contemplated by the rating schedule. 3. Entitlement to a TDIU is granted. The Veteran asserts that he is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. See, e.g., December 2020 Attorney Brief; October 2019 Hearing Testimony at 16-22. The Board agrees. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Throughout the appeal, the Veteran is in receipt of an initial 50 percent rating for PTSD, a 20 percent rating for left lower extremity radiculopathy, a 10 percent rating for a low back disability, a 10 percent rating for a neck disability, a 10 percent rating for left varicocele, a 10 percent rating for tinnitus, and noncompensable ratings for bilateral hearing loss, atrophy of the left testicle, and scars associated with his neck and back disabilities. He has a combined 70 percent rating throughout the appeal and thus meets the schedular criteria for a TDIU. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Before relying on an examiner’s finding that a veteran is capable of sedentary work to deny a TDIU, the Board must explain how it interprets that concept in the context of the case. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). Here, the Board interprets “sedentary work” in its usual sense, specifically white-collar office-type work. The Veteran reports that he last worked in 2010 as an electrician. See October 2019 Hearing Transcript; April 2017 VA Form 21-8940. Thus, as the Veteran is not shown to be receiving income from employment, the economic component of a TDIU is met. Turning to the noneconomic component, the Veteran has an associate degree in electronics. See April 2017 VA Form 21-8940; October 2019 Hearing Transcript. He testified that he had not been able to secure work due to physical disabilities, including his left lower extremity numbness and back and neck pain. He stated that he could not climb ladders and started looking for a place to sit as soon as he stood up, and that the pain distracted him from focusing on other activities. He reported, by way of example, that he could not even mow the grass. See Hearing Transcript at 17-22. The October 2012 VA examiner noted that the Veteran was status post laminectomy and cervical fusion required a rolling walker. With respect to the Veteran’s low back and neck disabilities, the examiner noted that the Veteran could not lift more than 15 pounds and could not stand, walk, or sit for more than 15 minutes. The examiner described this as a “mild” functional limitation and stated without further explanation that the Veteran would be able to do sedentary work. See October 2012 VA Examination Report. On the Veteran’s neck examination report, the examiner noted a diagnosis of “radiculopathy” attributable to a neck condition and noted bilateral moderate upper extremity radiculopathy. See October 2012 VA Neck Examination Report. Thus, while he is not in receipt of separate ratings for upper extremity radiculopathy, the Board will consider the impairment from this service-connected disability. The October 2012 audiologist noted that the Veteran’s hearing loss made it hard to understand speech and the Veteran reported difficulty understanding directions. See October 2012 VA Audiology Report. The September 2012 VA Psychiatric examiner described the impairment arising from the Veteran’s PTSD as mild, transient symptoms, with symptoms of depressed mood and impairment or short and long-term memory. See September 2012 VA Psychiatric Examination Report. The September 2020 VA Psychiatric examiner described the impairment arising from the Veteran’s PTSD as mild, transient symptoms, with symptoms including depressed mood, anxiety, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the Veteran’s report that he gets panic attacks that come in clusters after three or four months in remission and that he gets “really depressed” sometimes where he can stay depressed for a week. The Veteran submitted a disability benefits questionnaire (DBQ) and narrative examination report completed by a private psychologist. The psychologist diagnosed PTSD, as well as major depressive disorder and panic disorder secondary to PTSD, as well as history of polysubstance abuse in partial remission. The examiner assessed the Veteran’s psychiatric disorders as productive of total occupational and social impairment. The examiner described the Veteran as being unable to complete household chores and preferring not to go out in crowds or participate in social activities. The examiner noted that as a result of PTSD, the Veteran is unable to function effectively around others, experienced problems with concentration and memory due to a lack of sleep, and his depressive symptoms resulted in low energy and motivation when attempting to carry out activities of daily living. Additionally, the examiner noted the Veteran’s report of difficulty dressing due to orthopedic limitations and his grip problems that cause him to frequently drop things. See April 2020 Private Psychiatric Examination Report. Initially, the Board observes that the medical opinions from public and VA examiners as to whether the Veteran would be able to secure and follow a substantially gainful occupation intrude into the role of the Board as adjudicator. The ultimate determination as to entitlement to a TDIU is made by VA adjudicators rather than medical examiners. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Moreover, while the psychologist who authored the April 2020 private examination report is not shown to have the competency to describe limitations arising from orthopedic disabilities, he is competent to relay the Veteran’s lay testimony as to his limitations. Here, the evidence shows that the Veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities. His physical limitations prevent him from standing, sitting, or walking for any length of time or lifting heavy objects, and all these tasks are a necessary element of work as an electrician. Indeed, the Veteran credibly testified that he was not kept on at his last job because he was not able to perform at the same level as other workers. See Hearing Transcript at 16-17. While the October 2012 VA examiner opined that the Veteran would be able to perform sedentary work, the evidence indicates that his PTSD is productive of limitations in concentration, motivation, energy, and ability to work with others. Moreover, the October 2012 examiner noted that he would be unable to sit for more than 15 minutes. This shows that the Veteran would not be able to work at any sedentary role without breaks. Simply put, he is not shown to have the skills, training, and experience that would allow him to secure and follow a substantially gainful occupation with his remaining functional ability. To the extent that the evidence is not definitive on this point, the Board resolves any reasonable doubt in favor of the Veteran.   To avoid prejudice to the Veteran, the Board will defer to the AOJ the question of assigning an effective date in the first instance. See Urban v. Principi, 18 Vet. App. 143 (2004). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel 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.