Citation Nr: 21062470 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-24 237 DATE: October 7, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss began during active service, or is otherwise related to an in-service injury, or disease. 2. The evidence of record does not show that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1967 to June 1969, including service within the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The above claims were previously before the Board in April 2019 and February 2021, at which time they were remanded for a clarifying opinion. That development having been completed; these claims are once again before the Board. During the remand period, it is noted that the RO granted service connection for left shoulder osteoarthritis, right shoulder pain, degenerative arthritis lumbar spine, and left and right knee osteoarthritis in a February 2021 rating decision. Thus, as these claims have been resolved in full, they are no longer before the Board. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends he has bilateral hearing loss due to in-service noise exposure. Under the relevant laws and regulations, 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 competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including other organic diseases of the nervous system, which includes sensorineural hearing loss, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Here, the question for the Board is whether the Veteran has a current bilateral hearing loss disability that began during service or is at least as likely as not related to an in-service injury or disease. 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 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 Veteran's bilateral hearing loss disability was confirmed at the July 2013 VA examination. The Board also recognizes in-service noise exposure has been conceded in this case and service connection for tinnitus was awarded on that basis. Thus, the question remaining for the Board is whether his hearing loss is related to his military service. A review of the Veteran's service treatment records (STRs) show that his May 1967 pre-enlistment audiogram was within normal limits with 0 decibels in the right and left ear at 500, 1000, 2000 and 4000 Hertz, respectively, with the exception of 15 decibels at 2000 Hertz in the left ear. His April 1969 separation audiogram shows threshold shifts, with 5, 5, 5, and 10 decibels in the right ear and 5, 5, 10, and 10 decibels in the left ear at 500, 1000, 2000 and 4000 Hertz, respectively. At a June 2013 VA examination, the examiner found that the Veteran's hearing loss was less likely than not caused by or a result of military noise exposure. The examiner merely noted that hearing was normal at the separation physical. The Board found the rationale inadequate as it failed to note the threshold shift, and found it was internally inconsistent with the opinion that tinnitus was due to noise exposure and associated with hearing loss. At the October 2018 Board Hearing, the Veteran testified that he did not receive hearing protection and when exposed to excessive noise, his head was numb and his "ears just shut down." He stated it took days before he was normal again. He also testified that he purchased hearing aids in the past 10 to 15 years. Another VA examination was afforded in June 2021. The examiner noted there was a high probability for exposure to hazardous noise in service and there was a significant threshold decrease in hearing from the pre-induction to the separation examination at 4KHz bilaterally, although the audiogram was still within normal limits at separation. The examiner also noted that the responses on an undated audiometric tracing were better than the pre-induction audiogram. The June 2021 VA examiner went on to opine that the Veteran's bilateral hearing loss was less likely than not caused by service. This was based on a report from The Institute of Medicine (IOM) that concluded there was insufficient longitudinal data to support progression to a hearing loss due to hazardous noise once that exposure has ceased. Further, evidence from lab studies in humans and animals was sufficient to conclude that the most pronounced effects of a given noise exposure are measurable immediately following the exposure, with any recovery to stable hearing thresholds occurring within 30 days. The examiner noted the Veteran's report of a "numbness" of hearing for several days following the range was consistent with this finding. In June 2019, the Court of Appeals for Veterans Claims (the Court) ruled in McCray v. Wilkie, 31 Vet. App. 243 (2019), that when determining the adequacy and probative value of a medical opinion, the Board must consider whether the medical text evidence that the medical opinion relies on contains qualifying or contradictory aspects. The Court explained that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. Regarding the IOM study, the Court noted that, although the IOM report concluded that "based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss," the report also stated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." The Court determined that these statements appeared to be contradictory or qualifying and that it was incumbent on the Board to discuss such apparent contradictions or qualifiers when providing adequate reasons and bases. The Board acknowledges that the June 2021 VA examiner relied, in part, on the IOM report as a basis for providing a negative opinion and the IOM report has apparently qualifying or contradictory statements, as noted by the Court in McCray. The Board finds that this does not render the opinion inadequate or diminish its probative value to zero. The IOM report concluded that "based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss" while also stating that "definitive studies to address this issue have not been performed." However, based on the evidence available, the report stated that it was "unlikely" that delayed hearing loss effects occur. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term ("unlikely"). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested "a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." In citing to the IOM report, the June 2021 examiner relied on medical literature that indicated further testing could be done on the matter, but that the available evidence was against a finding of delayed onset hearing loss. The absence of definitive scientific evidence does not mean that a delayed onset of hearing loss following acoustic trauma is probable, or even just as likely as not. Thus, the IOM report is not necessarily given overwhelming probative value, but is still given significant probative value. The report is still an informed medical conclusion based on data about hearing loss and the Board finds that it is of significant enough probative value to be instructive to the examiner. Furthermore, there have been no opposing studies or other contradictory evidence submitted in the appeal. See 38 U.S.C. § 5107 (a) ("a claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Moreover, the Court in McCray referenced "a medical text's qualifying or contradictory aspects" as one factor on a non-exhaustive list that is relevant to the Board's evaluation of the probative value and adequacy of a medical opinion. McCray, 31 Vet. App. at 257. Here, the June 2021 examiner specifically noted that "His current audiogram configuration is not pathognomonic for noise exposure." The examiner considered this data, as well as in-service audiometric test results, to conclude that the medical evidence was more consistent with hearing loss unrelated to in-service noise exposure. Thus, the VA examiner did not rely entirely on the IOM report in forming a conclusion, but instead considered all relevant facts in the case. Therefore, the VA examiner's reliance on the IOM study was not misplaced, and given that the examiner also considered the Veteran's prior medical history and provided a sufficient rationale for the Board to evaluate the claim, the Board gives much probative weight to the VA examiner's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). To the extent that the Veteran may believe his hearing loss is related to his active service, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board also considers presumptive service connection. The Veteran has not presented any evidence of hearing loss within one year of service. By Veteran's own admission at the October 2018 Board hearing, he purchased hearing aids 15 years prior, which is over 30 years after separation. Thus, the more probative medical evidence indicates the Veteran's hearing loss did not manifest within one year of separation. Based on the above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss on a direct and presumptive basis. The appeal must therefore be denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) In order to establish service connection for a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially-gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When the veteran's schedular rating is less than total, a total rating based upon unemployability may nonetheless be assigned. If there is only one service-connected disability, it must be rated at 60 percent or more. 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 at least 70 percent. See 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment cannot be considered substantially-gainful employment. Generally, marginal employment exists when a veteran's earned annual income does not exceed the Federal poverty threshold for one person. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is currently assigned a 70 percent rating for posttraumatic stress disorder, a 20 percent rating for left and right shoulder osteoarthritis, a 10 percent rating for diabetic neuropathy of right lower extremity, 10 percent rating for left and right knee osteoarthritis, 10 percent for degenerative arthritis of the lumbar spine, 10 percent for tinnitus, and 10 percent for allergic rhinitis. The combined rating of the Veteran's disabilities is 90 percent. Thus, he satisfies the criteria for consideration of TDIU on a schedular basis. In his application for TDIU, the Veteran contends several service-connected disabilities prevent him from employment, including his knee condition, shoulder condition, lumbar degeneration, and PTSD. Specifically, he contends his PTSD causes problems with sleeping, concentrating, irritability, angry outbursts, and engaging in social interactions, which make it difficult to function in any type of work position. His shoulder condition makes steering difficult. He has difficulty walking due to his knees and has pain with kneeling and climbing stairs. He also contends non-service-connected disabilities prevent him from employment, including neck pain and hearing loss. He indicated that his highest education level was two years of college. He was last employed in 2019 as a project manager, working for that employer since 2017. Prior to that, he worked as a construction inspector. The Veteran also indicated he tried to obtain employment since the last time he worked. Notably, on his application for TDIU, he noted that he did not leave his last position because of his disability. The Veteran's spouse submitted a lay statement, indicating that since 2015, he has had problems with maintaining employment. He left a position in 2015 after six weeks due to stress. In 2016, he was fired after six weeks with no explanation. She stated that he is no longer employable because of his employment history and he is "old and worn out". In a September 2019 PTSD VA examination, the Veteran reported he had 20 jobs in the last 20 years. He was a construction engineer who works as a project manager and last worked full time in the summer of 2018. He stated that he had problems with many employers because they asked him to lie for them. He found it difficult to find employers that he respects and trusts. He stated that he has difficulty maintaining employment because he will not lie. He claimed that good jobs are available, but he does not want to compromise his integrity. At the time of the examination, he was working 4 hours a week as a consultant and planned to work indefinitely. The examiner noted that he has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. It is clear from the record that the Veteran suffers from nonservice-connected disabilities, including a neck condition and bilateral hearing loss, that have impacted his ability to obtain substantially gainful employment. He alleges that he cannot turn his head to the right due to a pinched nerve and his hearing loss creates a dangerous workplace condition as he cannot hear moving equipment. Nonetheless, the Board may not consider the Veteran's nonservice-connected disabilities when determining whether the Veteran is unemployable for purposes of assigning a TDIU rating. See 38 C.F.R. § 4.16. As stated above, a TDIU rating must be based on the impact of service-connected disabilities, though consideration may be given to the Veteran's level of education, special training, and previous work experience. The Board finds the preponderance of the evidence weighs against a finding that the Veteran's service-connected disabilities have rendered him unemployable. The Board acknowledges that the Veteran's PTSD is currently rated at 70 percent disabling, and that this rating represents a high level of impairment. Ultimately, disability ratings are "based primarily upon the average impairment in earning capacity, that is, upon the economic and industrial handicap which must be overcome." 38 C.F.R. § 4.15. A high disability rating is not determinative as to whether an individual is rendered unemployable, and a TDIU rating is based upon an "individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In this case, the evidence of record indicates that the Veteran's service-connected disabilities are not so severe as to preclude him from maintaining substantially gainful employment consistent with his education and occupational background. Specifically, the September 2019 VA examination indicates that his PTSD causes only occasional decrease in work efficiency. Further, the Veteran himself stated he has difficulty with maintaining employment due to his unwillingness to compromise his integrity and lie for his employers. The possession of those virtues cannot be reasonably seen as an impairment of the ability to perform the physical and mental acts required by employment. Private and VA treatment records also do not indicate that his service-connected knee, shoulder, lumbar spine disabilities, tinnitus and allergic rhinitis prevent the Veteran from maintaining employment. (Continued on the next page) Accordingly, the greater weight of the evidence is against the conclusion that his service-connected disabilities have rendered the Veteran unable to secure and follow a substantially gainful occupation. As such, entitlement to TDIU is not established. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.