Citation Nr: 21064073 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-27 185 DATE: October 19, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's right ear hearing loss is etiologically linked to his active-duty service. 2. The preponderance of the evidence supports that the Veteran's service-connected posttraumatic stress disorder (PTSD) renders him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1981 to October 1987. The matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2017 rating decision issued by the Agency of Original Jurisdiction (AOJ). These claims were previously before the Board in July 2019 and February 2020. In its July 2019 decision, the Board denied entitlement to a TDIU. The Veteran timely appealed the July 2019 Board decision to the Court of Appeals for Veteran's Claims (CAVC/Court). Pursuant to an April 2020 Joint Motion for Partial Remand, the Court remanded the Veteran's claim for entitlement to a TDIU. The claim has now been returned to the Board for further appellate review. The Veteran's claim for service connection for right ear hearing loss was most recently remanded in February 2020 to obtain an adequate medical opinion as to the nature and etiology of the Veteran's right ear hearing loss. A VA medical opinion was associated with the file in March 2020. The Board finds that the medical opinion is insufficient. However, in light of the full grant of benefits awarded herein, further remand is not required. 1. Entitlement to service connection for right ear hearing loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Turning to the evidence of record, the Veteran was diagnosed with right ear hearing loss most recently in March 2020 by VA audiological examination. The examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45db 55db 35db 35db 45db Speech recognition was 88 percent. These results indicated that the Veteran's hearing impairment reached the level of a disability. See 38 C.F.R. § § 3.385. In-service noise exposure is conceded as the Veteran was service connected for tinnitus and left ear hearing loss. Accordingly, the remaining issue is a nexus. The Veteran was afforded a VA examination in July 2017. The examiner found the Veteran's hearing loss was not related to service solely because the Veteran had normal hearing at separation. In its July 2019 remand, the Board found this opinion inadequate and requested a new opinion addressing whether the Veteran's hearing loss was related to his military service regardless of whether hearing loss was shown upon service separation. Additionally, the examiner was instructed to address the Veteran's lay statements in support of his claim. Specifically, the Veteran has reported that his hearing loss began during service in 1983. A new opinion was associated with the record in September 2019. The September 2019 examiner again opined that because "the 1980 enlistment audiogram and 4/17/85 audiogram each verified right ear hearing thresholds had been within normal limits", the Veteran's current right ear hearing loss was not caused by or a result of military noise exposure." The Board remanded the claim in February 2020 with specific instructions to consider whether the Veteran's hearing loss was related to his military service regardless of whether hearing loss was shown upon service separation. In March 2020, a VA examiner opined that the Veteran's right ear hearing loss was not related to his active service and again neglected to address the Veteran's lay statements regarding hearing loss in service. The Board notes that the examiner's opinion relies heavily on the separation examination, the lack of documented threshold shifts in the Veteran's right ear during service, and his normal hearing at separation. However, the Veteran provided evidence that calls into question the validity of the separation examination. The Veteran has repeatedly reported that his hearing was not tested at separation. No examiner has provided any rationale that does not rely solely on the results of the Veteran's separation examination. The Veteran indicated, in sum, that he suffered from symptoms of hearing loss starting in service and continues to experience worsening hearing loss symptoms. In weighing the Veteran's statements, the Board notes that he is competent to assert the presence of symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also has no reason to doubt the credibility of the Veteran's statements and, as such, finds them probative. Given the Veteran's credible statements of continuing symptoms and the lack of an adequate negative nexus opinion, the Board finds that service connection for right ear hearing loss is warranted. See 38 C.F.R. § 3.303 (a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence). Accordingly, the appeal for service connection for right ear hearing loss is granted. 2. Entitlement to a TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, 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. § 1555; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 7591 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16 (a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). The Veteran submitted an express claim for an increased evaluation based on unemployability contending that his service-connected PTSD precluded him from securing or maintaining substantially gainful employment. The Veteran is in receipt of a 70 percent rating for PTSD, a 10 percent rating for a left knee disability, a 10 percent for tinnitus, a noncompensable percent rating for left ear hearing loss. In the case at hand, the Veteran meets the criteria for a TDIU on a schedular basis as he is assigned a rating in excess of 60 percent for a single disability. 38 C.F.R. § 4.16(a). The record reflects that the Veteran completed high school and one semester of trade school. See April 2017 VA Form 21-8940. The record indicates that the Veteran last worked in September 2017 as a self-employed mechanic. See August 2020 Accounting Correspondence. The Veteran avers that he has been unable to work due to service-connected disability since that time. The record reveals the Veteran's PTSD causes suspiciousness, depressed mood, mild memory loss, panic attacks more than once a week, speech intermittently irrelevant, difficulty adapting in stressful circumstances, neglect of personal appearance and hygiene, difficulty in establishing and maintaining effective work and social relationships, chronic sleep impairment, disturbances of motivation and mood, difficulty adapting to work, impaired short-term and long-term memory, speech intermittently obscure, speech intermitently illogical, and anxiety. By the Veteran's reports these symptoms impacted his work significantly in that they prohibited him from interacting with his customers during his period of self-employment. A highly probative August 2020 private vocational assessment deemed the Veteran unable to secure and follow substantially gainful employment in any occupation regardless of skill or exertional level as a result of his service-connected PTSD since at least September 2017. After thorough review of the record and an interview with the Veteran, the consultant found that the Veteran would be off task more than the allowable amount of time for competitive employment at any level of work regardless of stress levels, to include sedentary, unskilled work. Additionally, the consultant noted that the Veteran would more likely than not be unable to maintain a regular predictable schedule without unexcused absences and he would be incapable of developing or maintaining appropriate relationships with coworkers, supervisors, or customers. After reviewing the evidence discussed above, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his PTSD. The Board has considered the Veteran's functional capacity and work experience in determining that no type of employment would appear to have been appropriate for the Veteran. See 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.