Citation Nr: 21012108 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 07-25 733 DATE: March 3, 2021 ORDER The claim for service connection for tinnitus is denied. The claim for a total disability rating based on individual unemployability (TDIU) on extraschedular basis is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that tinnitus had its onset inservice or manifested to a compensable degree within the applicable presumptive period; or that there is continuity of symptomatology; or that the disability is otherwise etiologically related to inservice injury or disease. 2. The preponderance of the evidence is against finding that on an extraschedular basis the Veteran’s service-connected disabilities precluded his ability to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a TDIU rating on extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to May 1983. This appeal comes before the Board of Veterans’ Appeals (Board) from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions of May 2005 and April 2006. A November 2012 Board decision denied a compensable rating for sensory radiculopathy of C6 of the right upper extremity; denied a rating in excess of 10% for right knee osteoporosis with instability; denied a rating in excess of 20% for a fracture of the mid-shaft of the right femur with right leg atrophy and shortening; and granted an increased from 10% to 20% for low back pain with scoliosis of the thoracolumbar spine, secondary to the right femoral fracture. That decision denied entitlement to a TDIU rating on a schedular basis because the Veteran did not meet the minimum numeric requirements under 38 C.F.R. § 4.16(a), and remanded claims for service connection for tinnitus and a TDIU rating on an extraschedular basis. The Board again remanded those two claims in August 2017. An August 2020 rating decision granted a 20% rating for sensory radiculopathy of C6 of the right upper extremity. In compliance with the Board’s 2017 remand, the Executive Director of VA’s Compensation Service issued a second determination in December 2020, the first having been in August 2016, denying extraschedular entitlement to a TDIU rating. 1. The claim for service connection for tinnitus. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of 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 the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases, such as tinnitus as an organic disease of the nervous system, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Board concludes that the preponderance of the evidence weighs against finding that tinnitus had its onset in service, or manifested to a compensable degree in service or within the initial post separation year; or that it was noted inservice with continuity of symptomatology; or that it is at least as likely as not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. See also, Holton, supra. The Veteran contends that his present hearing loss disability and tinnitus are due to military noise exposure from having served as a cook with an artillery unit and loud music when he operated a military club. As to the first, his having served as a cook would not have placed him near or in the vicinity of actual artillery fire and, as to the second, it would require a resort to speculation to assume that any music at a military club would be so loud as to be expected to cause tinnitus. The Board finds that the Veteran now has a diagnosis of tinnitus. However, his service treatment records (STRs) are negative for tinnitus. In June 1968 he had otitis externa of the left ear; but in September 1977, when he had a cold, and in October 1978, when he had an upper respiratory infection, it was noted that he did not have tinnitus. The Veteran’s initial claim for VA disability compensation was received in May 1983 but made no mention of tinnitus. His initial claim for service connection for tinnitus was received in November 2004. There is no contemporaneous evidence of tinnitus prior to 2004. VA outpatient treatment (VAOPT) records show that in 2004 he was evaluated a hearing loss. However, VAOPT records from 2003 to 2005 show no complaint of tinnitus. A June 2004 VAOPT record reflects that the Veteran had been seen by Hear USA (in Port Charlotte, Florida) as part of a fee basis contract. Pursuant to the 2017 Board remand, additional steps were taken to locate private clinical records of Hear USA. A July 2020 Report of Contact reflects that upon contacting Hear USA it was determined that he had not been seen at that facility since 2004 and any records thereof had been destroyed because the retention period for such records was only 10 years. The Veteran was notified of this by RO letter in August 2020 and an August 2020 Report of Contact reflects that he had no relevant documents in his possession to submit. The case was also remanded in 2017 to afford the Veteran an examination as to the claim for service connection for tinnitus. That examination was conducted in May 2019 and, for the reasons explained, it is adequate for adjudication purposes. Thus, the Board finds that there has been substantial compliance with its prior remands. See Stegall v. West, 11 Vet. App. 268 (1998). On official audiology evaluation in May 2019 the Veteran’s electronic claim file was reviewed and his reports of inservice exposure to loud noise from live-fire artillery exercises and loud music from having worked as a club manager at a military night club were recorded. The examiner noted that the Veteran had no noise exposure prior to or after service. Following audiometric testing the diagnoses included a bilateral sensorineural hearing loss and tinnitus. The examiner opined that the records did not support finding that the Veteran’s hearing loss was due to military noise exposure because available audiograms showed normal hearing and his military occupational specialty had a low probability of noise exposure and, thus, his hearing loss was less likely as not incurred in or caused by military service. Similarly, the examiner noted that the Veteran reported having had the onset of tinnitus in “1988” due to live-fire and loud music. While 1988 is after the Veteran’s military service, the Board will assume that this was a mere clerical error and that the Veteran actually reported having had the onset of tinnitus during service and that the examiner was aware of this. In any event, the examiner opined that the records did not support finding that the Veteran’s tinnitus was due to military noise exposure because his military occupational specialty had a low probability of noise exposure and the available audiograms showed normal hearing. The latter is of significance because the examiner opined that the Veteran’s tinnitus was “at least as likely as not” a symptom associated with his hearing loss because tinnitus was known to be a symptom associated with hearing loss. However, inasmuch as the examiner also opined that the sensorineural hearing loss was unrelated to military service, this provides no basis for concluding that any tinnitus associated with such hearing loss warrants service connection. As to lay evidence, while the Veteran is competent to describe his tinnitus symptoms, he does not have the education, training or expertise to formulate a competent medical opinion linking tinnitus to active service, including noise exposure. This is a complex medical determination beyond the ken laypersons that cannot be answered based on observation or analysis of a layperson. Indeed, the onset of tinnitus is an intricate matter that requires an understanding of various bodily systems, to include the auditory system. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316. Therefore, the Board finds that the Veteran's opinion has no probative value in this matter. Next, the Board finds the lay statements of continuity less than credible as they are inconsistent with contemporaneous evidence. See Pond v. West, 12 Vet. App. 341 (1999). As to this, while the Veteran’s original VA disability application was received in 1983, shortly after service, it did not include his having any tinnitus. Accordingly, in consideration of the above and the negative STRs, coupled with the decades intervening service separation and the first documented complaint of tinnitus, which was first made decades after service separation when his recollection of events is less reliable, the Board finds the Veteran's lay reports less than credible. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (silence in the STRs may be evidence contradictory to a veteran's assertions if the STRs appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). The Board assigns greater probative value to the Veteran’s medical records, which contain no complaints of tinnitus for two decades after service separation. See Curry v. Brown, 7 Vet. App. 59,68 (1994) (contemporaneous evidence has greater probative value than a history as reported at a later date). The Board also assigns greater probative value to the two decades between active service and the first documented findings or complaints of tinnitus. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (consideration may be given to the passage of a lengthy period of time in which there were no complaints); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). For these reasons and bases, and even after consideration being given to favorably resolving doubt, the Board finds that the preponderance of the evidence is against the claim for service connection for tinnitus. 2. The claim for a TDIU rating on extraschedular basis. The prior Board decision in November 2012 did not find that the Veteran was precluded from securing or following a substantially gainful occupation due to service-connected disabilities alone. Rather, he did not meet the schedular requirements for a TDIU rating and the evidence of record was insufficient to consider whether an extraschedular TDIU rating was warranted and that matter was to be addressed by the Director of Compensation services in the first instance. The Board concludes that the preponderance of the evidence weighs against a finding that service-connected disabilities rendered the Veteran unemployable or unable to secure and follow a substantially gainful occupation. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. Where the veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service (hereinafter Director) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: Severity of a veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides. The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components.  See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.   Id.  The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment.  Id.  It also has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether TDIU is warranted, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted, the November 2012 Board decision, although granting a 20% rating for service-connected low back pain with scoliosis of the thoracolumbar spine, found that the Veteran did not meet the numeric requirements under 38 C.F.R. § 4.16(a) for a TDIU rating. The matter of extraschedular entitlement was remanded to refer this aspect of the appeal to the VA Director of Compensation services. In compliance, in August 2016, the Director noted a private physician’s July 2006 statement that because of the Veteran’s back and leg fracture worsening he could no longer return to his previous job of cook or kitchen manager, but it was found that this was a bare conclusion since it assumed facts not in the record. Also, a determination by the Social Security Administration (SSA) found the Veteran totally to be disabled due to chronic pulmonary insufficiency. His past medical history included chronic obstructive pulmonary disease (COPD), knee pain, tobacco use disorder, intermittent claudication, nocturia, arthritis, and backache. From the record the service-connected disabilities individually or collectively were not the sole reason for the Veteran’s unemployability. The Board again remanded this claim in August 2017 for examinations to assess the effects of the service-connected disabilities as to the Veteran’s employability. These examinations were conducted in May 2019. Based upon the findings of the examinations, an August 2020 rating granted a compensable rating of 20% for sensory radiculopathy of C-6 of the right (dominant) upper extremity. This resulted in a combined disability rating of 50% but, nevertheless, the Veteran still does not meet the numeric requirements for a schedular TDIU rating. Thereafter, and also in compliance with the 2017 Board remand, the case was again referred to the Director of Compensation who found in December 2020 that the Veteran last worked as a cook/food services director in May 2005. A Social Security Administration (SSA) determination found that he was disabled due to chronic pulmonary insufficiency and the late effects of muscular and connective tissue injury. The medical evidence showed that the Veteran’s conditions would result in difficulty with prolonged standing, walking or carrying. While it was conceded that service-connected conditions caused functional limitations, the Director determined that the preponderance of the evidence failed to demonstrate that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment. As to the non-economic component (e.g., veteran’s history, education, skills, and training, while the Veteran’s VA Form 21-8940, Application for Increased Compensation based on Unemployability, in June 2005 reflects that he had stopped working in May 2005 due to his disabilities and 4 years of high school education, the evidence shows that he received VA education benefits and has 2 years of college education. With respect to the economic component, i.e., the effect of his service-connected disabilities, a May 2005 letter from the Veteran to the Administrator of Bon Secours Place at Healthpark, his employer, states that he was no longer able to work at his employment for health reasons and specifically due to problems with his legs, back, and respiratory problems. In December 2005 the Administrator and Director of Bon Secours Assisted Living Facility reported that the Veteran had worked there for 7 years as the facility’s Chef and Food Services Director. In May 2005 he had reported that he could no longer work due to pain in his back, knee, and leg. In addition to strong pain medication he took psychotropic medication to deal with anxiety. In June 2005 the Veteran’s wife attested to his deteriorating condition, stating that he could no longer work and that in addition to his service-connected physical disabilities he had developed sleep apnea. SSA records include a report of a March 2006 Psychological Evaluation which shows, in part, that the Veteran had stopped working in May 2005 due to problems with physical discomfort and interpersonal difficulties due to agitation. He took medication for pain but also for depression, allergies, his prostate, cholesterol, and his stomach. The diagnoses were severe major depression, and an adjustment disorder with anxiety and depression. A November 2006 SSA Disability Determination and Transmittal shows that the Veteran became disabled in May 2005 and he was awarded SSA disability benefits for a primary diagnosis of “chronic pulmonary insufficiency (COPD)” and secondary diagnosis of the “Late effects of Muscle & Connective Tissue Injury.” Other documentation reflects that he had 14 years of education and that his age was a factor in the SSA determination. A report of an official September 2011 examination reflects, in part, that after pulmonary function testing there were signs of an obstructive lung disorder consistent with bronchial asthma, and signs of chronic lung disease, i.e., emphysema. VA examinations in May 2019 show that the Veteran reported that prolonged standing and sitting caused back pain but on examination he had full range of motion except for a loss of 30 degrees of flexion and while he had pain in all planes of motion there was no evidence of pain with weight-bearing or additional loss of motion after three repetitions of motion. However, pain did cause additional loss of motion after repeated use over time and during flareups. Additional examinations at that time found 4 cms. of shortening of the right leg and atrophy of the right thigh musculature and while muscle strength was diminished, and strength was still 4/5, in right hip flexion. He had decreased sensation in the right, dominant, upper extremity which the examiner characterized as being mild. He had painful but unlimited right hip motion except after repetitive use over time due to pain. The Veteran also had full range of motion of the right knee, although pain significantly limited functional ability with repeated use over time without any actual limitation of motion. Further, testing of his ligaments found no anterior, posterior, medial, or lateral instability. The examiner stated that the shortening of the right leg resulted in pathological alterations of other structures. He had instability of posture which result in a reduced tolerance for prolonged standing, walking or carrying heavy things and, thus, there was impairment in his work related to any necessity of perform these activities. He had tingling, numbness and decreased sensation in his right arm and reduction in sensitivity could result in a non-proper gripping, which could lead to difficulty in carrying or grasping objects. Significantly, the May 2019 examination specifically noted that the Veteran did not use any assistive device as a normal mode of locomotion. However, the examiner also noted that, as to nonservice-connected COPD, the Veteran’s decreased respiratory function could cause a reduction in tolerance of physical effort because his past employment as a food manager required prolonged standing and continuous movement all day. In sum, the Veteran and his former employer have stated that it was a combination of service-connected and nonservice-connected disabilities, and particularly respiratory and psychiatric disorders, which led to the Veteran’s no longer working. This is corroborated by SSA records which demonstrate that his nonservice-connected COPD was the primary reason for his award of SSA disability benefits, and even the recent official examination noted that his respiratory disorder impaired his physical activity. As to this, although the Veteran’s service-connected disorders would preclude employment requiring significant physical and prolonged activity, the Board finds that in light of his 2 years of college education, and without consideration of his advancing age, he would not be precluded from obtaining or retaining substantially gainful employment of a sedentary nature. The distinction between these levels of sedentary as opposed to nonsedentary impairment is not one of simple categorization but is rather a spectrum or arc with extensive gradations from one end of a spectrum or arc to the other. A commonsense interpretation of sedentary is that it excludes even moderate vigorous or strenuous physical activity. However, the Board emphasizes that the test is not whether the Veteran is precluded from all types of employment, such as sedentary employment, but whether such employment is realistically within his physical and mental capabilities. In this case, the Board envisions potential sedentary employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time on his feet, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks to get up from a sitting position to stretch out his back and legs. The Veteran’s past employment has been primarily as a cook and some managerial skills. Nevertheless, in light of his having several years of college education and some managerial experience, he would be capable of a variety of forms of employment that require some degree of writing, arithmetic or other tasks consistent with such an education. To the extent that is may be believed that substantial, gainful employment should mean obtaining a work position of a nature similar to his past employment, which in this case is essentially non-sedentary, a TDIU rating is not warranted simply because the evidence shows a veteran would be unable to return to the specific job or line of work performed in the past or that he or she would make a lower salary than in the past. Rather, VA regulation provides 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.” 38 C.F.R. § 4.16(b). The fact that a claimant is unemployed or would have difficulty obtaining employment the claimant would prefer or had in the past is not enough to warrant entitlement to TDIU. The critical question is whether the Veteran can perform the physical and mental acts required by employment, not whether the Veteran can find employment. Also, to the extent that in making this analogy the Veteran’s is suggesting that the Board should make specific findings as to what forms of employment were available to him, in light of his functional impairment due to his service-connected disabilities, there is no legal requirement that the Board make specific findings as to which particular types of employment, including any sedentary employment under any definition, the Veteran is capable of performing. “[A] TDIU determination does not require any analysis of the actual opportunities available in the job market.” See Pederson v. McDonald, No. 13-1853, slip op. (U.S. Vet.App. Feb. 13, 2015) (en banc) (quoting Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011)). Moreover, to the extent the Veteran may attempt to argue that the Board must specifically identify the degree to which his service-connected disability, as opposed to his non-service-connected disabilities, impairs his ability to work, such an analysis is not required. See Pederson v. McDonald, No. 13-1853, slip op. (U.S. Vet. App. Feb. 13, 2015) (en banc). For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against the claim a TDIU on an extraschedular basis. Michael L. Marcum Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.