Citation Nr: 21075347 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-17 109 DATE: December 20, 2021 ORDER Effective May 31, 2018, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Service connection for low back condition is granted. From November 15, 2016, a 30 percent disability for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral foot disability is remanded. FINDINGS OF FACT 1. Effective May 31, 2018, the Veteran's service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. 2. The Veteran's low back condition began during active service. 3. It was factually ascertainable that the Veteran's bilateral hearing loss approximated the criteria of 30 percent from November 15, 2016. 4. From March 4, 2021, the evidence is clear that the Veteran's hearing loss was manifested by Level VI hearing impairment in the left ear and Level VI in the right ear hearing loss, but no higher. CONCLUSIONS OF LAW 1. Effective May 31, 2018, the criteria for a TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 4.16. 2. The criteria for service connection for a low back condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a 30 percent disability rating for the entire appeal period for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to August 1980. In November 2020, the Board remanded the issue of entitlement to service connection and entitlement to a compensable disability rating for bilateral hearing loss. In an August 2021 rating decision, the RO granted an increase from noncompensable to 30 percent disabling, effective March 4, 2021 for the Veteran's bilateral hearing loss. 1. Entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) In March 2021, VA received the Veteran's TDIU claim asserting that his service-connected disabilities precluded him from working. The Veteran reported he last worked August 10, 2000. Effective May 31, 2018 the Veteran was in receipt of a combined 90 percent disability rating for the following disabilities adjustment disorder with mixed anxiety and depressed mood, rated at 70 percent from May 31, 2018; scar, anterior of the neck, rated at 30 percent from July 1, 2014; bilateral hearing loss, rated noncompensable from July 1, 2014 and rated 30 percent from March 4, 2021; tinnitus, rated at 10 percent from July 1, 2014; right knee osteoarthritis, rated 10 percent from November 15, 2016; painful scar, rated noncompensable from July 1, 2014 and rated 10 percent from November 29, 2016; left hip degenerative arthritis (limitation of flexion), rated 10 percent from May 11, 2017; right hip pain, limitation of motion, rated10 percent from May 11, 2017 and right knee joint osteoarthritis (limitation of extension); left hip degenerative arthritis (limitation of extension); left hip degenerative arthritis, impairment of thigh; right hip pain (limitation of extension); right hip pain, impairment of thigh all rated noncompensable from May 11, 2017. Initially, the Veteran's service-connected disabilities have satisfied the schedular criteria from May 31, 2018. See 38 C.F.R. § 4.16. As to education and occupational history, the Veteran has a partial college education and his employment history has been limited to physically demanding work and work that requires a high level of interaction with people as a Corrections Officer and as a Real Estate Agent. In the regard, a October 2020 VA psychiatric examination reports shows that the Veteran reported symptoms that included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood and difficulty in adapting to stressful circumstances, including work or a work like setting. The Board finds that such symptoms would seriously impair the Veteran's ability to engage in interpersonal communication needed for work consistent with the Veteran's experience as a realtor and as a correctional officer. When coupled with the Veteran's service-connected physical impairments, the Board finds that the Veteran would not reasonably be able to keep up with the physical requirements of employment consistent with his experience as a correctional officer. In sum, the evidence shows that he Veteran's service-connected psychiatric symptoms when coupled with his service-connected physical impairments would have likely precluded the Veteran obtaining or maintaining employment consistent with his occupational experience and education. After resolving any doubt in the Veteran's favorthe Board finds that a TDIU is warranted. See Geib, 733 F.3d 1350. 2. Entitlement to service connection for low back condition. The Veteran contends that lumbar pain began in service and has continued since service. Specifically, the Veteran reported back strain resulting in low back pain during service. See December 2014 Back Disability Benefits Questionnaire (DBQ). The Veteran has a current diagnosis of lumbosacral sprain/strain. See December 2014 Back Disability Benefits Questionnaire (DBQ). The Veteran's service treatment records show he injured his back lifting a heavy object at work. See October 1979 Service Treatment Records (STRs). The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The United States Court of Appeals for the Federal Circuit has held that "pain in the absence of a presently-diagnosed condition can cause functional impairment," which may qualify as a "disability" for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that "a veteran could demonstrate service connection simply by asserting subjective pain" because, to establish that a disability is present, the veteran "will need to show that... pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. "Functional impairment," the Federal Circuit noted, is defined as the inability of the body or a constituent part of it "to function under the ordinary conditions of daily life including employment." Id. at 1363 (quoting 38 C.F.R. § 4.10). The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was 12B10 Combat Engineer. The Veteran has competently and credibly reported that he has suffered from lower back pain since he injured his back lifting a heavy object at work. At the December 2014 VA back examination, the Veteran reported that his back symptoms did not improve much with treatment. He stated that over the years he has continued to experience lower back pain. He reported dull, constant back pain and occasional shooting pain, tingling and numbness in his lower back. The Veteran further stated that he began having back problems in service. In July 2018, the Veteran's private examiner provided a positive nexus opinion. He reasoned that Veteran's service treatment records (STR) show he complained of low back pain as a result of lifting a box. See October 1978 STR. The pain was also aggravated with sitting and prolonged standing. The Veteran was diagnosed with L/S pain secondary to strain from lifting. The private examiner provided the positive nexus opinion considered the Veteran's lay statements, the fiancé's buddy statement and treatment records. See July 2018 Private Examiner Report. The Veteran's fiancé stated that she has known him since 2001. Since that time, he has complained of back pain. He often uses a heating pad on his back two to three times per week. She reported that the Veteran had back problems prior to knowing his fiancé and that he told he told her he never had back problems prior to his military service. See June 2018 Buddy Statement. The Board notes that the Veteran is competent to report the onset, course and effects of his pain and finds him to be a credible historian. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). Further, the Board finds that the functional effects of the low back pain, as described by the Veteran, demonstrate that his pain reaches the level of a functional impairment of earning capacity. The Board notes, the December 2014 VA examiner negative opinion does not take in to account the subsequent favorable lay and medical evidence received since that time. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the Board may not simply adopt a medical examiner's opinion that fails to discuss favorable evidence of record but must instead account for that favorable evidence with an adequate statement of reasons or bases). Resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for a disability manifested by chronic low back pain is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 3. Increased rating for bilateral hearing loss. The Veteran's bilateral hearing loss is rated as non-compensable from July 1, 2014 and 30 percent from March 4, 2021. The Veteran's bilateral hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Under Diagnostic Code 6100 the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 et. seq. Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). 38 C.F.R. § 4.85 (c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. Analysis The Veteran filed a claim for an increased rating for bilateral hearing loss on November 15, 2016. The Veteran was afforded a VA hearing examination in December 2016. Although testing was attempted, results were recorded as "could not test" (CNT) at all threshold levels of audiometric and speech discrimination testing. The examiner indicated that testing could not be done, "CNT," because "[p]ure tone responses were not reliable as exhibited by poor SRT/PTA agreement, inconsistent responses. Repeated attempts were made to ascertain true organic hearing thresholds and speech recognition." As previously stated, the Board remanded this issue for additional development, to include a VA examination in November 2020. At the March 2021 post-remand examination, the Veteran had pure tone thresholds of 20, 30, 30 and 40 decibels in the right ear and pure tone thresholds of 20, 30, 30 and 45 decibels in the left ear at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 30 decibels in the right ear and 31 decibels in the left ear. Speech recognition ability was 58 percent in the right ear, and 56 percent in the left ear. The Veteran is currently in receipt of a 30 percent rating for hearing loss from the date of the March 2021 VA examination showing that his manifested in Level VI hearing impairment in the right ear and Level VI hearing impairment in the left ear. However, effective dates "should not be assigned mechanically based on the date of diagnosis." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead, "all the facts should be examined" to determine the date the increase in disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011). Here, the evidence shows that November 15, 2016, marked a turning point in the state of the Veteran's hearing loss. Based on facts found, it was at this point that it became factually ascertainable that an increase in severity occurred. In this regard, on November 15, 2016, the Veteran notified VA that his hearing loss had increased. He was provided a VA examination in December 2016, but it was inadequate for rating purposes. However, the March 2021 VA examination report shows that the Veteran's hearing loss satisfied the criteria for a 30 percent rating. Accordingly, as the November 15, 2016, claim was the first indication that the Veteran's hearing loss had worsened, an increased rating is warranted from that time. With application of the above test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran's right ear hearing loss, at its worst, is assigned a numeric designation of VI and in the left ear, at its worst, is assigned a numeric designation of VI. These test scores do not show that the Veteran met the criteria for a rating in excess of 30 percent for his bilateral hearing loss at any time during the pendency of the appeal. Although the Veteran is competent to report his observable hearing loss symptoms such as difficulty hearing, he is not competent to report that his hearing acuity was sufficient to warrant a higher evaluation under VA's tables for rating hearing loss disabilities. Such an opinion requires medical expertise and testing which has not been shown. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, as stated above, the assignment of disability ratings for hearing impairment are derived by a mechanical application of audiometric evaluation results to the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, even considering the reports as to the effects of his hearing loss on his daily life, the relevant evidence shows that the criteria for a rating in excess of 20 percent are not met. The Board finds that an award of 30 percent from the date of November 15, 2016, letter is appropriate as this letter represents the first factually ascertainable increase in the Veteran's disability. As held by the Court in Swain, 27 Vet. App. 219, the effective date is governed by when the increase is factually ascertainable, not by when proper testing for rating purposes is actually conducted. In other words, a delay in obtaining a rating-compliant exam following evidence of worsening should not lead to the Veteran being denied a higher rating. The Board denies entitlement a rating in excess of 30 percent prior to November 15, 2016 as the most competent evidence of record does not show right ear impairment above Level VI and left ear impairment above Level VI. Prior to the November 15, 2016 correspondence, the Veteran had not submitted evidence indicating that his hearing had worsened beyond the level reflected by the December 2014 examination. The Board finds no ascertainable claim that the Veteran's bilateral hearing loss had worsened until the November 2016 letter. The Board has considered whether the provisions in §§ 4.85 and 4.86 which cover exceptional patterns of hearing loss would provide a greater rating. However, even when considering these provisions, the Veteran still does not qualify for a higher rating prior to November 15, 2016. As the evidence shows that the Veteran's hearing loss worsened in the right ear to Level VI impairment and in the left ear to Level VI impairment, and this increase was factually ascertainable as of November 15, 2016, the Board grants entitlement to a rating of 30 percent for bilateral hearing loss effective November 15, 2016 and no earlier. REASONS FOR REMAND Entitlement to service connection for bilateral foot condition is remanded. The Veteran seeks service connection that he contends was incurred in service. Specifically, the Veteran reports that he began having pain in his feet after military exercises that involved jumping out of helicopters and increased physical activity while in service. See May 2021 contract foot examination. The Board notes the Veteran has multiple bilateral foot diagnoses, to include bilateral flat foot, metatarsalgia, bilateral plantar fasciitis and degenerative arthritis of the left foot. See January 2021 Contract Examination. The Veteran's STRs show a December 1979 complaint of slight swelling of the left foot due to twisting from playing basketball. The Veteran's post-service private and VA treatment records shows complaints of bilateral foot pain and his report of having had calcaneus spur surgery on the left foot in 1999. The Veteran was afforded a post remand foot examination and addendum opinion in January 2021. The January 2021 examiner provided a negative nexus opinion. The examiner reasoned that during service, the Veteran's foot condition was acute only and there is no evidence of chronicity of care and that the Veteran's symptoms are subjective. However, this medical opinion is not probative as the examiner did not adequately consider the Veteran's lay contentions that he has had bilateral foot pain since service. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding an examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). In light of the documented in-service and post-service reports of bilateral foot pain, the Veteran's post-service private and VA treatment records showing complaints of bilateral foot pain and multiple foot diagnoses, a remand is necessary for an addendum opinion that expressly addresses the Veteran's symptoms, treatment or diagnoses related to foot pain. The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to a qualified clinician to determine the etiology of his bilateral foot disability. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. The Veteran has multiple foot diagnoses to include bilateral pes planus, bilateral metatarsalgia, bilateral plantar fasciitis and left foot degenerative arthritis. The clinician is asked to address the following: 2. Determine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right foot disability manifested during active service or is related to any incident therein. 3. Determine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left foot disability manifested during active service or is related to any incident therein. The examiner is asked to specifically address the Veteran's reports of ongoing bilateral foot pain. 4. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such a conclusion. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.