Citation Nr: 21069422
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 06-25 948
DATE: November 18, 2021

ORDER

Entitlement to service connection for a chronic disability manifested by dizziness including vertigo is denied.

Entitlement to a total rating based on individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. The preponderance of the evidence shows that a chronic disability manifested by dizziness including vertigo was not present in service or until many years thereafter, it is not related to service or to an incident of service origin, and it was not caused or aggravated by the service-connected disability bilateral hearing loss.

2. The Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) for a TDIU nor the extraschedular requirements of 38 C.F.R. § 4.16(b) for a TDIU at any time during the appeal.

CONCLUSIONS OF LAW

1. The criteria for service connection a chronic disability manifested by dizziness including vertigo have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

2. The criteria for TDIU have not been met at any time during the appeal.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty with the United States Army from August 1951 to July 1962.  He died in November 2017.  The appellant is his surviving spouse whose motion for substitution was granted by the regional office (RO).

The current appeal has a long and complicated procedural history dating back to a June 2006 rating decision that denied both claims with two Board of Veterans' Appeal (Board) decisions by Veterans' Law Judges not the undersigned, three appeals to the United States Court of Appeals for Veterans Claims  (Court), six Board Remands, and the Veteran's death.  The Board has reviewed this case in some detail. 

Specifically, before adjudicating the claims below, the Board finds it important to note the following:

	a July 2007 Board decision, among other things, denied both claims;

	in a May 2008 order, the implemented the parties Joint Motion for Remand (JMR), the Court vacated and remanded the July 2007 Board decision;

	in February 2009 the Boards, among other things, denied both claims;

	in a January 2011 Court decision, Judge Schoelen vacated and remanded the February 2009 Board decision that denied both claims; 

	in March 2011, November 2011, December 2019, July 2020, May 2021, and August 2021, the Board thereafter Remanded both claims to address the concerns raised by the January 2011 Court decision;

	in November 2017, the Veteran died and his surviving spouse's motion for substitution was thereafter granted by the RO; and

	in a March 2019 Court decision Judge Bartley, among other things, dismissed the appellant's TDIU appeal to the Court because this issue was still in Remand status and had not as yet been the subject of another final Board decision.

The Concerns Raised by the JMR and the Court Decision as well as Post-Remand Compliance

As to the concerns raised in the JMR, the Court Decision, and post-Remand compliance, the Board finds that the post-Remand development substantially complied with them because it finds that the VA opinion obtained in September 2021 provides all needed information to adjudicate the vertigo claim under all theories of entitlement including secondary service connection, as required by Judge Schoelen in the January 2011 Court decision, because it considered the competent and credible lay claims regarding observable symptomatology, the in-service and post-service medical record, and because it is supported by medical reasoning.  See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record).

In reaching the above conclusion the Board has not overlooked the fact that neither the Board remands nor the subsequent VA opinions addressed directly the Court's new definition of aggravation found in Ward v. Wilkie, 31 Vet. App. 233 (2019) regarding temporary flare-ups also meeting the definition of aggravation.  

This is a conundrum the Board faces repeatedly:  The Board attempts to fully address the concerns of the Court in repeated remands of complex cases, which takes time, and during this time the Court issues more decisions which could impact the case the Board has repeatedly remanded, leading in some cases to more delays and an endless cycle of adjudication, even after the Veteran has died based on the retroactive application of caselaw that did not exist when this claim was filed. 

Nonetheless, and as will be discussed in more detail below, the Board finds that the September 2021 VA opinion is adequate to adjudicate the claim of service connection for vertigo under 38 C.F.R. § 3.310, including due to aggravation, because the examiner definitively stated that "[t]he two conditions [i.e., the Veteran's service-connected bilateral hearing loss and vertigo] are not related."  Therefore, given the 16 year history of this appeal as discussed above with the Veteran being dead for the last five of those years and the definitive nature of the September 2021 VA opinion, the Board finds that no better opinion will be obtained even if it were to Remand this appeal for seventh time and, if fact, a seventh Remand does not serve the interests of the appellant, the Veterans' Administration (VA), or the Court.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).  

In this regard, the Board apologies to for the delays in the full adjudication of this case. 

The Board also finds that the post-Remand development substantially complied with the Remand because all identified and available VA and private treatment records were obtained and associated with the claims file including having all Spanish language documents translated into English as directed by the May 2008 JMR.  See 38 U.S.C. § 5103A(b); Stegall, supra; Sabonis, supra.  

As the Veteran's records from the Social Security Administration (SSA), while they are not found in the claims file, in February 2015 the SSA notified the RO that they had been destroyed, in July 2016 the Veteran notified the RO that he did not have them, and also in July 2016 the Veteran notified the RO that the SSA benefits he received were due to his age.  Therefore, the Board finds that no further action is required as to these records.  Id. 

The Service Connection Claim

The appellant claims that the Veteran was entitled to service connection for a chronic disability manifested by dizziness including vertigo because, in substance, it was due to his military service and/or his service-connected bilateral hearing loss.  

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including other organic diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury.  See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019).

The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record.  Where 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Initially, the Board notes that the record shows the Veteran was diagnosed with vertigo and positional head nystagm.  See, e.g., VA treatment records dated in November 2005 and January 2006; Jose M. Franquiz-Matos, M.D., letter dated in July 2007; VA examinations dated in July 2011 and March 2015; housebound examination dated in June 2014.

Next, the Board finds that the Veteran was competent to report on the events he experienced while on active duty as well as manifestations of his disability and the appellant is competent to report on what she sees.  See Davidson, supra.  

However, the service treatment records, which includes May 1959, July 1959, October 1960, and May 1962 examinations, are negative for injuries, history, complaints, diagnoses, or treatment for a chronic disability manifested by dizziness including vertigo.  See Colvin, supra.  

In fact, at the May 1959, July 1959, October 1960, and May 1962 examinations the Veteran specifically denied a history of dizziness.  In this regard, it is important to note that at these key points, it was the Veteran himself that provides evidence against this claim.  Moreover, at the May 1959, July 1959, October 1960, and May 1962 examinations the Veteran did not report having a problem with dizziness and a chronic disability manifested by dizziness including vertigo was not diagnosed by the examiner.  Id.

Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused post-service a chronic disability manifested by dizziness including vertigo.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

In this regard, the Board finds that the detailed service record, which documents the Veteran's complaints, diagnoses, or treatment for a number of other problems weights against the current claim that he had problems with observable symptoms of a chronic disability manifested by dizziness including vertigo while on active duty which ended in 1962; almost 60 years before his death in 2017.  See Owens, supra.  

Again, it is important for the appellant to understand that at this point it was the Veteran himself that provided evidence against the claim.  

As to service connection for a chronic disability manifested by dizziness including vertigo based on the presumptions found at 38 C.F.R. § 3.309(a), the record does not show an organic disease of the nervous system being diagnosed in the first year following his separation from active duty.  Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the appellant establish service connection for a chronic disability manifested by dizziness including vertigo.  See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307.

Next, the Board will consider whether the Veteran was entitled to service connection for a chronic disability manifested by dizziness including vertigo due to continuity of symptomatology under 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b).  

In this regard, in a non-precedential Memorandum Decision, Judge Toth of the Veteran's Court emphasized that it is the Board's duty to determine whether evidence shows that the principal fact is true with a degree of certainty that satisfies the requisite standard of proof.  See Davis v. McDonough, No. 20-3267 (September 22, 2021).  As stated by Judge Toth, mere circumstantial evidence such as this can be compared with the annotations of Henry David Thoreau, who observed of "unscrupulous dairymen who diluted their milk with water to increase its volume, '[s]ome circumstantial evidence is very strong, as when you find a trout in the milk.'"  See id. (citing Journal, 11 Nov. 1850, in 2 Journal of Henry D. Thoreau 94 (Bradford Torrey & Francis H. Allen eds., 1962)); Also see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain).  

With the above standard in mind, the Board notes that the post-service record does not show that the Veteran had a continued problem with a chronic disability manifested by dizziness including vertigo in and since active duty ended in 1962; almost 60 years before his death in 2017.  

In fact, and as noted above, service treatment records, including the May 1959, July 1959, October 1960, and May 1962 examinations, are otherwise negative for injuries, history, complaints, diagnoses, or treatment for a chronic disability manifested by dizziness including vertigo.  See Colvin, supra.  Tellingly, not only did the Veteran deny having a history of dizziness at his May 1959, July 1959, October 1960, and May 1962 examinations but on examination he was not diagnosed with any chronic disability manifested by dizziness including vertigo.  Id.

Likewise, and as important, the post-service is negative for any complaints, diagnoses, or treatment for a chronic disability manifested by dizziness including vertigo until 1998; over 35 years after the Veteran's 1962 separation from active duty.  See, e.g., VA examination dated in October 1998.  Such facts provide some evidence against this claim.

The Board also finds it significant that at no time in any of his in-service or pre-1998 post-service medical record did the Veteran report having a chronic disability manifested by dizziness including vertigo while on active duty and since active duty in 1962; almost 60 years before his death in 2017.  In this regard, the Board finds it significant that the Veteran's June 1993 head computerized tomography (CT) and August 1998 brain magnetic resonance imaging evaluation (MRI) were negative.  This is not simply "negative evidence" or the absence of evidence, but at points the Veteran himself providing active evidence against this claim. 

Given this record, the Board finds that the evidence in the form of the service medical records and the post-service medical evidence provides highly probative evidence, overall, against the claim which evidence the Board finds more probative than the Veteran's and/or the appellant's claims that he had observable symptoms of a chronic disability manifested by dizziness including vertigo in service and since his service ended in 1962.  See Owens, supra.   

For the reasons noted above, the Board finds that the service and post-service medical records provide highly probative evidence against the claim.  Id.  The service and post-service records in this case provide particularly negative evidence against the claim (both are highly detailed; clearly indicating a problem that began years after service). 

Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with a chronic disability manifested by dizziness including vertigo in and since his service ended in 1962 (i.e., almost 60 years before his death in 2017).  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(b).

The Board also finds that the preponderance of the evidence shows that the Veteran's post-service chronic disability manifested by dizziness including vertigo is not due to his military service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).

In this regard, the July 2011 and September 2021 VA examiners opined, in substance, that the Veteran's chronic disability manifested by dizziness including vertigo was not due to his military service.  Moreover, the Board finds these opinions the most probative evidence of record for the following reasons: they considered the service treatment records and the post-servicer treatment records; they considered the Veteran's and/or appellant's competent and credible claims regarding observable symptoms; they considered the in-service and post-service medical records; they took into account all theories of entitlement; the opinions are supported by medical reasoning as well as controlling medical literature; and/or because they are not contradicted by any other medical evidence of record.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches....  As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position); Owens, supra; Colvin, supra.

The Board also finds that neither the Veteran during his lifetime nor the appellant since that time is competent to provide the missing nexus opinion because they do not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused the Veteran's post-service chronic disability manifested by dizziness including vertigo).  See Davidson, supra.  

Therefore, the Board finds that the most probative evidence of record shows that the Veteran's chronic disability manifested by dizziness including vertigo is not due to his military service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra.  

In this regard, the key question in this case is not if the Veteran had a disease or injury while on active duty or if during his life-time he had chronic disability manifested by dizziness including vertigo.  The key issue is whether any disease or injury the Veteran had during active duty, almost 60 years before his death in 2017, was at least as likely as not (a 50 percent or greater chance) the cause of the current problem.  The fact that he may, or may not, have had chronic disability manifested by dizziness including vertigo while on active duty does not always provide the basis to find that the post-service disability is the result of that disease and/or injury from almost 60 years ago.  Sometimes, in some cases, the best evidence provides evidence against such claim.  In this case, the Board finds that there is now significant evidence in this record, in both the service and post-service (and sometimes the Veteran's own statements), that provides highly probative evidence against the claim that clearly outweigh all evidence that supports the claim.  See Owens, supra.

The Board next finds that the preponderance of the evidence shows that the Veteran's chronic disability manifested by dizziness including vertigo was not caused or aggravated by his already service-connected bilateral hearing loss.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310; Also see Allen, supra; Wallin, supra; Ward, supra.

In this regard, and as discussed in part above, the Board finds that the September 2021 VA examiner's opinion provides competent and credible evidence as to the Veteran's chronic disability manifested by dizziness including vertigo not being caused or aggravated by his service-connected bilateral hearing loss.  Moreover, the Board finds the opinion the most probative evidence of record for the following reasons: it considered the service treatment records and the post-servicer treatment records; it considered the Veteran's and/or the appellant's competent and credible claims regarding observable symptoms; it considered the in-service and post-service medical records; it took into account all theories of entitlement; the opinion is supported by medical reasoning as well as controlling medical literature; and it is not contradicted by any other medical evidence of record.  See Owens, supra; Guerrieri, supra; Wray, supra; ElAmin, supra; Colvin, supra.

In reaching the above conclusion, the Board has not overlooked the fact that the November 1998 VA examiner reported that the Veteran has hearing loss with vertigo.  However, this record does not ever include a medical opinion that the Veteran's vertigo was due to his service-connected bilateral hearing loss.  Therefore, the Board finds that it is not pertinent to the secondary service connection question.  See Owens, supra.

The Board again finds that neither the Veteran during his lifetime nor the appellant since that time is competent to provide the missing nexus opinion because they do not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused and/or aggravated his chronic disability manifested by dizziness including vertigo).  See Davidson, supra.  

Therefore, the Board finds that the most probative evidence of record shows that the Veteran's chronic disability manifested by dizziness including vertigo was not secondary to a service connected disability.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310; Also see Allen, supra; Wallin, supra; Ward, supra.

It is vital for the appellant to understand that the Board has taken her concerns seriously (it was the bases of the six Board Remands), however, there is now overwhelming medical and factual evidence against the claim from the VA examiners that the Board cannot ignore.  The service and post-service treatment records, as noted above, also have been found by the Board to provide highly probative evidence against the claim, beyond the medical opinions in this case that also provide evidence against the claim.  There is no basis to assume that yet another medical opinion in this case will provide a basis to grant the claim, in light of this record.  With regard to any contention that the Veteran had the problem for almost 60 years before his death in 2017, the Board must find that any such statement would be outweighed by the evidence of record.

Therefore, the Board finds that the claim of service connection for a chronic disability manifested by dizziness including vertigo is denied.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

The TDIU Claim

During his lifetime the Veteran asserted, in substance, that his service-connected bilateral hearing loss prevented him from working. 

In this regard, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341. 

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment.  38 C.F.R. § 4.16(a).  

Furthermore, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b).  In cases where the schedular criteria are not met, an extraschedular rating is for consideration.  38 C.F.R. § 4.16(b).

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).  

It is imperative for the Veteran to understand that neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  

With the above laws and regulations in mind, the Veteran in his VA Form 21-8940, Increased Compensation Based on Unemployability (TDIU Claim Form), dated in March 2006, February 2008, and January 2016, reported, in substance, that he became too disabled to work and had not worked full time because of his service-connected bilateral hearing loss in 1998, 2000, or 2007.  

He also reported that from 1985 to 1998, 1970 to 2000, or 1970 to 2007 he had worked full-time as a pharmacy technician.  

His highest level of education was 4-years of high school.

As to employment, in an April 2016 VA Form 21-4192, the Veteran's former employer also notified the RO that he had worked for them as a pharmacy technician from 1967 to 2006 and he last worked in 2006.

Lastly, the record shows the Veteran was service-connected for the following disability:

	bilateral hearing loss rated as 10 percent disabling from June 14, 2005, 20 percent disabling from May 4, 2006; and 40 percent disabling from December 1, 2015.

a. TDIU under 38 C.F.R. § 4.16(a)

As to a TDIU under 38 C.F.R. § 4.16(a), this record shows that the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) at any time during the pendency of the appeal.  The Board has reached this conclusion because the Veteran did not have one service-connected disability rated at 60 percent disabling or two or more service-connected disabilities with one disability rated at 40 percent or higher with his combined rating being 70 percent or higher because he had one disability rated, at its' worst, as 40 percent disabling.  

b. TDIU under 38 C.F.R. § 4.16(b)

As to a TDIU under 38 C.F.R. § 4.16(b) the Board notes that in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration.  

In this regard, RO under 38 C.F.R. § 4.16(b) already sent the claim to the Director, Compensation Services for extraschedular consideration.  Thereafter, in September 2016, the Director, Compensation Services, opined that the Veteran did not meet the criteria for an extraschedular TDIU under 38 C.F.R. § 4.16(b).  

Therefore, the next question for the Board to consider is when, if ever, the Veteran met the criteria for an extraschedular TDIU under 38 C.F.R. § 4.16(b). 

In this regard, the Board notes that 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).  In this regard, it is imperative for the appellant to understand that neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  

The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough.  The assignment of a rating evaluation is itself recognition of industrial impairment. 

Initially, the Board finds that even if it conceded that the Veteran had not had gainful employment since 1998, 2000, 2006, or 2007, this fact alone is not enough to meet the criteria for an extraschedular TDIU.  See 38 C.F.R. § 4.16(b); Owens, supra.

The Board has reached this conclusion because extraschedular consideration is only warranted when the adverse symptomatology caused by a Veteran's service-connected disabilities are not adequately compensated for by the rating criteria.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (emphasis added) (providing, in substance, that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity).  

In this regard, the Board finds that the most probative evidence of record in the form of the Veteran's VA examinations show that the adverse symptomatology caused by his service-connected bilateral hearing loss are both contemplated and consider by the rating criteria.  See Owens, supra. 

Specifically, the Board finds it significant that at the October 2005, May 2006, November 2007, March 2015, January 2016, August 2020, and February 2021 VA audiological examinations the Veteran reported that his hearing loss's only functional impact was that it caused problems hearing what people are saying in group settings and to him as well as problems listening to the television.  In this regard, the March 2015  examiner also opined that he needed constant supervision to function and the February 2021 examiner opined that his ability to function in an occupational environment would be restricted to very quiet areas, with the least possible verbal communication demands.

Tellingly, the Board finds that at all times during his life-time the Veteran competently reported on difficulty hearing (i.e., observable adverse symptomatology) (see Davidson, supra.) and the medical record show his adverse symptomatology was limited to, in substance, difficulty hearing.  See, e.g., VA examinations dated in October 2005, May 2006, November 2007, March 2015, January 2016, August 2020, and February 2021.

Moreover, the Board finds it significant that the adverse symptomatology reported by the October 2005, May 2006, November 2007, March 2015, January 2016, August 2020, and February 2021 VA examiners is contemplated by the rating criteria and limited to the criteria for 10 percent, 20 percent, and 40 percent ratings for bilateral hearing loss.  See 38 C.F.R. § 4.87, Diagnostic Code 6100; Owens, supra.  

The Board also finds it significant that the February 2021 VA examiner opined that hearing loss does not preclude the Veteran from working albeit with some limitations (i.e., in an occupational environment restricted to very quiet areas and with the least possible verbal communication demands) and this medical opinion is not contradicted by any other medical evidence of record.  See Colvin, supra.

Given the above complaints and medical history, the Board finds that the preponderance of the evidence shows that the 10 percent, 20 percent, and 40 percent ratings for bilateral hearing loss contemplated and compensated him for the adverse symptomatology reported by the October 2005, May 2006, November 2007, January 2016, and March 2020 VA examiners, the February 2021 VA opinion, and the adverse symptomatology documented in his medical records and/or reported by first the Veteran and know the appellant.  See Owens, supra.  

The finding above is not meant to suggest that the Veteran did not have problems because of his service-connected bilateral hearing loss.  If there were no problems, there would be no basis for his compensation levels.  In this regard, it is important for the appellant to understand that not all medical evidence in this case supported his compensation levels, let alone a TDIU.

The Board has considered if the criteria an extraschedular TDIU under 38 C.F.R. § 4.16(b), have been met.  However, the Board finds that the preponderance of the evidence shows that the adverse symptomatology caused by the Veteran's service-connected bilateral hearing loss did not meet the criteria for an extraschedular TDIU at any time during the pendency of the appeal.  See Owens, supra.  The Board has reached this conclusion because the preponderance of the evidence in the form of the above VA examinations is both contemplated and consider by the rating criteria.  See 38 C.F.R. § 4.87, Diagnostic Code 6100; Owens, supra.

Accordingly, the Board finds that the claim for a TDIU is denied.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16; Owens, supra.

Conclusion

In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt.  See 38 U.S.C. § 5107(b).  However, as the preponderance of the evidence is against the claims, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra.

 

 

John J. Crowley

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N.T. Werner, 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.