Citation Nr: 21010917 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-11 225 DATE: February 26, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran’s right ear hearing loss was incurred in or etiologically related to active duty. 2. The Veteran has a combined rating of at least 70 percent with one disability rated at least 40 percent, and the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1979 to November 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal of multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal for further development in December 2019. The case has now been returned to the Board for further appellate action. Service Connection – Right Ear Hearing Loss Disability The Veteran asserts that her current right ear hearing loss disability is related to service. Impaired hearing will be considered a “disability” for VA compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 dB or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The regulations provide that an examination for hearing impairment for VA compensation purposes must be conducted by a state-licensed audiologist and must include a controlled Maryland CNC speech discrimination test and a pure tone audiometry test. See 38 C.F.R. § 4.85 (a). Service treatment records reflect that, on May 1979 enlistment examination, an audiogram reflected puretone thresholds of 10 dB in 500, 1000, 2000, 3000, 4000, and 6000 Hz. In the accompanying report of medical history, the Veteran reported that she had been previously treated for an ear infection. There is no separation audiogram of record. Post-service, an October 1984 audiogram revealed the following pure tone thresholds: 15, 5, 15, 5, and 5 dB in 500, 1000, 2000, 3000, and 4000 Hz, respectively. Treatment records in September 2006 reflect treatment for an ear infection. In January 2007, the Veteran submitted a claim for right ear otitis (infection). At an October 2007 evaluation conducted for the Social Security Administration (SSA), the Veteran did not report hearing loss. The examiner noted that conversational speech and hearing were normal. In December 2009, the Veteran presented for an initial comprehensive audiological examination for a complaint of intermittent bilateral tinnitus for 25 years. The Veteran reported serving in the military for one year and exposure to high levels of noise. However, she reported that hearing protection was used. The Veteran reportedly had a bug removed from her right ear canal two years prior. Testing results revealed normal sensitivity in each ear at all frequencies, except at 3000 Hz where mild loss was present. The Veteran was not a candidate for amplification, and was counseled regarding strategies for tinnitus management. At a September 2010 VA audiological examination conducted in connection with her claim for right ear infection, the Veteran reported exposure to heavy artillery, gunfire and M16s as a medical specialist in combat areas. The hearing test was invalid. The examiner noted that speech recognition was excellent bilaterally. In February 2015, the Veteran submitted a claim for bilateral hearing loss. At an April 2015 VA audiological examination, audiometric testing revealed the following thresholds: 20, 25, 30, 40, and 35 dB in 500, 1000, 2000, 3000, and 4000 Hz, respectively. The Veteran’s speech discrimination score was 96 percent. The examiner diagnosed mild to moderate sensorineural hearing loss with an excellent word recognition score. Although the Veteran reported a history of hazardous noise exposure during military service, the audiological evaluation revealed a flat sensorineural hearing loss at 2000-8000 Hz in the right ear, which is not a typical noise-induced audiometric configuration. The examiner explained that noise-induced sensorineural hearing loss is typically greatest in the highest frequencies and least evident in the lower frequencies, often with a reasonably sharp transitional region between the affected and unaffected frequency regions. The Veteran’s military occupational specialty was Medical Specialist, which has a low probability of noise exposure and she did not serve in combat, where high intensity noise is likely. Therefore, the Veteran’s hearing loss is not at least likely as not due to military noise exposure, but more likely related to age and/or contributory medical history, etcetera. In November 2016, the Veteran submitted an opinion from Dr. Yocum, a private chiropractor. Dr. Yocum stated that the Veteran was exposed to acoustic artillery fire on the range and other weapons fire. She has suffered from progressive bilateral hearing loss. Testing revealed a bilateral hearing loss of 40 percent. It is more likely than not that the Veteran’s hearing loss is directly and causally related to acoustic trauma in service. At a July 2017 VA examination, puretone thresholds were recorded as 15, 20, 30, 35, and 35 dB in 500, 1000, 2000, 3000, and 4000 Hz, respectively. Speech recognition was 96 percent in the right ear. The examiner did not render an opinion. At a July 2020 VA audiological examination, the Veteran reported a “very gradual” onset of hearing loss. She reported noise exposure from gunfire, tank fire, and hand grenades primarily in basic training. She denied wearing hearing protection. puretone thresholds were 30, 30, 35, 40, and 30 dB in 500, 1000, 2000, 3000, and 4000 Hz, respectively. Speech recognition was 94 percent in the right ear. Following the interview and review of the claims file, the examiner opined that the Veteran’s right ear hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner reasoned that there is no significant permanent shift in hearing thresholds beyond test variability from entrance examination completed in May 1979 to the post-service audiogram in October 1984, which is objective evidence of no permanent auditory damage on active duty from conceded noise. In light of the above evidence of record, the Board finds that service connection for right ear hearing loss is not warranted. Here, there is no notation of hearing loss until 2009, nearly 30 years after separation from active duty. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as one factor in resolving a claim). Moreover, the hearing loss noted at the December 2009 evaluation was characterized as “mild” and did not qualify the Veteran for hearing aids. Because hearing loss was not noted during service and did not manifest to a compensable degree within one year of service separation, service connection may not be granted on a presumptive basis, or based on chronicity or continuity of symptoms. See 38 C.F.R. §§ 3.303 (b), 3.307; Fountain v. McDonald, 27 Vet. App. 258 (2015). However, the sole fact that the Veteran’s hearing loss disability did not manifest until a number of years after service separation does not preclude service connection. The Veteran “may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In weighing the probative value of the medical nexus opinions of record, the Board finds that the July 2020 opinion is the most probative. It is the only opinion that appears to consider all pertinent evidence of record, because it cited the October 1984 audiogram showing no hearing loss. Further, the examiner properly conceded that the Veteran was exposed to noise, but ultimately concluded that because there was no shift in hearing thresholds between service and the first post-service audiogram, current hearing loss is not at least as likely as not related to service. The Board acknowledges the positive opinion of record; however, as noted in the prior remand, it is inadequate. Dr. Yocum, who is a chiropractor, did not provide the actual audiological test results and there is no evidence that he reviewed the Veteran’s claims file. In assessing the weight given to medical evidence, factors such as reasoning employed and whether the examiner was informed of the relevant facts are to be considered. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Further, the Veteran’s belief that her right ear hearing loss is linked to in-service noise exposure does not constitute competent evidence. Because the Veteran is not shown to have a medical background or expertise, she is considered a lay person in the field of medicine. Lay testimony is competent as to matters capable of lay observation or within a person’s first-hand experience (e.g., diminished hearing acuity or ringing in the ears) and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In this case, whether the Veteran’s hearing loss or was caused or aggravated by active duty are medical determinations, as such a relationship cannot be observed through the senses alone. Thus, the Veteran’s unsupported lay opinion is not competent evidence on this issue, and therefore lacks probative value. Layno v. Brown, 6 Vet. App. 465, 470-71 (1994). In sum, the criteria for service connection for right ear hearing loss are not satisfied. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply, and service connection for right ear hearing loss is denied. See 38 U.S.C. § 5107 (2018); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to a TDIU The Veteran asserts that her service-connected disabilities prevent her from maintaining or securing any substantially gainful employment. She is currently in receipt of a 50 percent rating for migraine headaches, a 30 percent rating for gastroesophageal reflux disease (GERD), 10 percent ratings each for eczema and tinnitus, and a noncompensable rating for left ear hearing loss. The Veteran is in receipt of a combined rating of 70 percent from July 20, 2017. As such, the Veteran meets the criteria for assignment of a TDIU. 38 C.F.R. § 4.16 (2019). What remains for consideration 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). The record shows that the Veteran last worked in December 2010. See, e.g., June 2017 Application for TDIU. She previously worked as a laboratory technician and a cashier. She reported completing two years of college. Id. At a July 2017 VA esophageal conditions examination, the Veteran reported that her GERD had increased in severity since she was last examined in 2015. She reported daily epigastric distress with nausea. She took omeprazole daily and mylanta about three times a week or as needed to help relieve heartburn. The Veteran reported that due to increasing stomach upset and difficulty swallowing, she had a barium swallow (x-ray of the pharynx) and was followed up by speech pathology clinic. Symptoms included persistently recurrent epigastric distress, dysphagia, reflux, regurgitation, substernal pain, and nausea. The examiner opined that the Veteran’s GERD impacts her ability to work with customers when she had increased belching and pain with reflux. The examiner further opined that the Veteran would be able to work in employment such as data entry or telephone work not requiring face to face interactions. At a July 2017 VA headaches examination, the Veteran reported that her migraines had increased in severity since she was last examined in 2015. She reported daily headaches that had been lasting all day for the past two weeks. She reported resting in a dark and quiet room helped to alleviate her headaches. The Veteran typically experienced three times a week, but at times would have migraines lasting for days or weeks. She described her headache pain as pulsing or throbbing which worsened with physical activity. She also experienced nausea and sensitivity to light and sound with her headaches/migraines. The examiner found that the Veteran experienced very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. Regarding her ability to work, the examiner opined that the Veteran’s uncontrolled migraines would cause multiple absenteeism. At a July 2017 VA skin diseases examination, the Veteran reported that her eczema had worsened since she was last examined in 2015. She described a rash on her back, arms, and scalp. The Veteran reported pain and itchiness “all the time.” The examiner opined that the Veteran’s skin disability impacted her ability to work in customer service, and that she would be better suited in data entry or telephone work not requiring face-to-face interactions. At a July 2020 VA audiological examination, the examiner opined that the Veteran’s hearing loss and tinnitus impacted her ability to work. The examiner noted the Veteran’s report of difficulty in understanding people over the phone. She further stated that if she was not watching someone while they were talking, she had trouble following instructions. The Veteran also had to take time out of her day to practice relaxation techniques if the ringing in her ears became too bothersome. Based on the foregoing, the Board finds that a TDIU is warranted. Although the record shows that several nonservice-connected disabilities contribute to unemployability, the record is at least in equipoise as to whether the Veteran’s service-connected hearing loss and tinnitus are of sufficient severity to cause unemployability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to TDIU is granted. REASONS FOR REMAND The Board finds that the issue of entitlement to DEA benefits is inextricably intertwined with the implementation of the grant of entitlement to a TDIU in the above decision. As such, the grant of TDIU must be implemented before the Veteran’s claim of entitlement to DEA benefits is considered. The matters are REMANDED for the following action: Implement the Board’s grant of entitlement to a TDIU in the above decision, and then readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.