Citation Nr: 21007918 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 10-32 186 DATE: February 11, 2021 ORDER Entitlement to a disability rating of 50 percent, but no higher, for bilateral hearing loss beginning March 6, 2009 is granted. Service connection for Meniere's disease, secondary to service-connected bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Beginning March 6, 2009, the Veteran’s bilateral hearing loss has been productive of no more than Level VI hearing impairment in his right ear and Level XI hearing impairment in his left ear. 2. The Veteran’s Meniere's disease is not proximately due to his service-connected bilateral hearing loss. 3. It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 50 percent, but no higher, for bilateral hearing loss beginning March 6, 2009 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.85, Diagnostic Code 6100 (2018). 2. The criteria for service connection for Meniere's disease, secondary to service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 3. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1968 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in June 2013. The Board remanded this matter for additional development in January 2014, March 2018, and February 2020. Notably, in the March 2018 decision the Board adjudicated the Veteran’s hearing loss rating for the period prior to March 6, 2009, but in a January 2020 appellate brief, his representative presented arguments regarding the rating assigned during that period. As the Veteran did not appeal the March 2018 decision regarding the rating prior to March 6, 2009, to the United States Court of Appeals for Veterans Claims (Court) or otherwise request reconsideration from the Board, that decision is final; the rating period before the Board begins on March 6, 2009. 1. Entitlement to a disability rating of 50 percent, but no higher, for bilateral hearing loss beginning March 6, 2009. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). Throughout the appeal period, the Veteran asserts that his bilateral hearing loss is more disabling than the 30 percent rating assigned. For the entire period on appeal, the Veteran’s left ear hearing loss has manifested with the highest impairment rated at Level XI. However, as the ratings are assigned by combination, the Veteran’s right ear limits the maximum rating that may be awarded. The Veteran submitted communication dated March 6, 2009 from a non-VA otolaryngologist indicating that the Veteran now had significant difficulty in hearing and that he should be considered for a higher rating. While the record contains several audiological examinations, including ones from July 2008, March 2012, and April 2014, none of these contain the CNC Maryland Speech Recognition results needed for VA rating purposes. The first examination that contains all of the required information is the March 2016 VA audiological examination for compensation purposes. On this audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 45 60 60 LEFT 105+ 105+ 105+ 105+ 105+ The average pure tone threshold from 1000 to 4000 Hertz was 51 decibels in the right ear and 105+ decibels in the left ear. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and a designation of “CNT”- indicating an inability to test for the left ear. An addendum VA opinion indicated that the CNT designation should have been recorded as 0 percent. These results correspond with the maximum Level XI impairment in the left ear, and Level IV impairment in the right; resulting in a combined rating of 30 percent. In numerous statements submitted in July 2010, February 2014, May 2018, and March 2020 the Veteran, his friends, and his family asserted that his bilateral hearing loss has increased in severity. Additionally, in January 2018, the Veteran’s representative also argued that the Veteran’s examinations were not recent enough to properly evaluate the current severity of his hearing loss. Due to the Veteran’s contentions the Board remanded the issue in a February 2020 decision to obtain a new examination and acquire all medical records. In an April 2018 letter, a private audiologist stated that the Veteran has lost all hearing in his left ear and provided a word recognition score for the Veteran’s right ear at 64 percent, noting the use of the Maryland CNC word list, however, the accompanying treatment record reflects the use of the Nu-6 list. In March 2020, the examiner submitted an addendum opinion certifying that the Maryland CNC word list was used. The examiner also noted that the Veteran’s right ear speech recognition threshold was 65 dB HL and the pure tone average for the right ear was 67.5 dB. At the June 2020 VA audiological examination for compensation purposes, the Veteran complained of impaired hearing. On the authorized audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 55 70 70 LEFT 105+ 105+ 105+ 105+ 105+ The average pure tone threshold from 1000 to 4000 Hertz was 61 decibels in the right ear and 105+ decibels in the left ear. Speech audiometry revealed speech recognition ability of 68 percent in the right ear and 0 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. These results show Level V hearing impairment in the right ear and Level XI hearing impairment in the left ear. With these levels, a 40 percent rating is assigned under Table VII in 38 C.F.R. § 4.85. At the July 2020 VA audiological examination for compensation purposes, the Veteran complained of impaired hearing. On the authorized audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 50 65 65 LEFT 105+ 105+ 105+ 105+ 105+ The average pure tone threshold from 1000 to 4000 Hertz was 57.5 decibels in the right ear and 105+ decibels in the left ear. Speech audiometry revealed speech recognition ability of 66 percent in the right ear and CNT for “could not test” in the left ear as a speech discrimination score is not appropriate. The Veteran was diagnosed with bilateral sensorineural hearing loss. These results show Level VI hearing impairment in the right ear and Level XI hearing impairment in the left ear. With these levels, a 50 percent rating is assigned under Table VII in 38 C.F.R. § 4.85. In light of the medical and lay evidence of record, a 50 percent rating, but no higher, for the Veteran’s bilateral hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board finds that an award of 50 percent from the date of March 6, 2009 letter is warranted as this letter represents the first factually ascertainable increase in the Veteran’s disability. As held by the Court in Swain v. McDonald, 27 Vet. App. 219, 224 (2015), 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 examination following evidence of worsening should not lead to the Veteran being denied a higher rating. 2. Service connection for Meniere's disease, secondary to service-connected bilateral hearing loss. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service-connected disability; or, aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310 (2018); see also, El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). In February 2020, the Board remanded the Veteran’s claims to obtain a medical opinion as to the etiology of the Veteran’s Meniere’s disease. Specifically, at the June 2013 hearing and in a January 2020 submission, the Veteran and his representative asserted that his Meniere’s disease may be a result of his hearing loss, thus warranting a medical opinion. Morgan v. Wilkie, 31 Vet. App. 162 (2019). In June 2020, a nurse practitioner reviewed the Veteran’s medical history and conducted an in-person examination. The nurse practitioner opined that the Veteran’s diagnosed Meniere’s disease is less likely than not proximately due to or the result of the Veteran’s service-connected bilateral hearing loss. The examiner rationalized that Meniere’s disease causes hearing loss, not the other way around. Per medical literature from Mayo Clinic, the cause of Meniere’s disease is unknown. However, symptoms of Meniere’s disease appear to be the result of an abnormal amount of fluid (endolymph) in the inner ear and factors that affect the fluid, which might contribute to Meniere’s disease, include: improper fluid drainage, perhaps because of a blockage or anatomic abnormality; abnormal immune response; viral infection; and genetic predisposition. Because no single cause has been identified, it’s likely that Meniere’s disease results from a combination of factors. In June 2020, an audiologist examined the Veteran. After a review of the Veteran’s record, the audiologist stated that hearing loss does not cause Meniere’s disease as Meniere’s disease causes a buildup of fluid, which causes swelling, vertigo, and difficulty hearing. In June 2020, a physician assistant (PA) reviewed the Veteran’s medical history and opined that the Veteran’s Meniere’s disease was less likely than not aggravated or proximately due to the Veteran’s service-connected bilateral hearing loss. The PA reasoned that current medical literature does not support the position that hearing loss creates or can worsen Meniere’s disease. The Veteran’s pre-existing bilateral hearing loss is presumed to be secondary to damage from noise exposure and the effects of aging. Hearing loss associated with Meniere’s disease is secondary to the abnormal/excessive buildup of endolymph or fluid. Hearing loss would not cause abnormal buildup of endolymph, nor would it have caused it to be more voluminous or damaging. In July 2020, an audiologist reviewed the Veteran’s history and conducted an in-person examination. The audiologist noted that the Veteran was diagnosed with Meniere’s disease in 2007. The audiologist stated that the Veteran’s Meniere’s disease is proximately associated with fluctuating hearing loss and tinnitus. The Board finds this opinion inadequate as the audiologist’s statement is unaccompanied by any rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Specifically, the audiologist does not identify if the Veteran’s Meniere’s disease is caused or aggravated by the Veteran’s service-connected disabilities, and instead, simply states that they are related. Although the Veteran contends that his Meniere’s disease is related to a service-connected disability, the Board finds that the question regarding the potential relationship between the Veteran’s Meniere’s disease and his service-connected disabilities to be complex in nature. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not possess the medical knowledge to attribute his Meniere’s disease to his military service or a service-connected disability. Therefore, the Veteran’s contention that his Meniere’s disease is related to a service-connected disability is not competent and therefore not probative. As the most probative evidence of record shows that the Veteran’s Meniere’s disease is not related to service or a service-connected disability, the preponderance of the evidence is against the claim, and service connection for Meniere’s disease must be denied. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A 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. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. 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). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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 nonexertional) 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). The Veteran asserts that the impact of his service-connected disabilities cause him to be unable to secure or follow a substantially gainful occupation. The Board notes that the Veteran’s service-connected disabilities meet the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment. 38 C.F.R. § 4.16.  On his TDIU application, the Veteran reported that he last worked full-time on July 31, 2009 in maintenance. See VA Form 21-8940, February 2014. He noted that his service-connected disabilities affected his full-time employment on July 1, 2009. The Veteran’s education consists of two years of college. In a September 2008 statement, the Veteran’s employer noted that they have observed the Veteran’s hearing and equilibrium decline and stated that he has difficulty hearing what is being said during staff meetings, trainings, and day-to-day operations. The statement further noted that they have tried to give the Veteran reasonable accommodation so that he may continue employment. In a July 2010 statement, the Veteran asserted that his quality of life has deteriorated greatly as his ability to make a living has gone down. He stated that he had to retire due to his inability to hear. During the August 2013 hearing, the Veteran competently and credibly testified that he is unable to work because of his service-connected bilateral hearing loss and tinnitus. Further, several statements submitted throughout the appeal period note the Veteran’s difficulties with hearing and how it affects his relationships and ability to work. See Lay Statements, February 2014, May 2018, and March 2020. Turning to the medical evidence, in an August 2013 psychiatric disability examination, the examiner opined that the Veteran’s service-connected panic disorder is secondary to his service-connected hearing loss. The examiner stated that the Veteran’s first panic attack occurred due to not being able to hear and he continued to have attacks until he was placed on medication. In June 2020, an examiner noted that the Veteran’s bilateral hearing loss impacts ordinary conditions of daily life, including ability to work by causing difficulty in hearing normal conversations in most listening situation and difficulty hearing in groups. Given the evidence regarding the severity of the Veteran’s service-connected disabilities, the Veteran’s functional limitations due to his service-connected disabilities, in light of his individual work experience and training, and with the resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of a TDIU rating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.