Citation Nr: 21022627 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 14-43 674 DATE: April 16, 2021 ORDER Entitlement to service connection for bilateral hearing loss, to include as secondary to diabetes mellitus, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis, for the period prior to November 7, 2005, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a TDIU, for the period from November 7, 2005, to January 1, 2007, is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is not secondary to service-connected diabetes mellitus, and is not otherwise related to an in-service injury or disease. 2. The Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment consistent with his education and occupational background prior to November 7, 2005. 3. The Veteran was in receipt of a total disability rating from November 7, 2005, to prior to January 1, 2007. 4. The Veteran’s service-connected right knee disability alone did not prevent the Veteran from obtaining and maintaining substantially gainful employment consistent with his educational and occupational background from November 7, 2005, to prior to January 1, 2007. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to a TDIU, for the period prior to November 7, 2005, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 3. The criteria for entitlement to a TDIU, for the period from November 7, 2005, to prior to January 1, 2007, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1969 to June 1971. He died in February 2016. His surviving spouse has been substituted in this appeal. See April 2019 notice letter; 38 C.F.R. § 3.1010. In October 2015, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The claims were previously before the Board of Veterans’ Appeals (Board) in August 2020 when they were remanded for additional development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for bilateral hearing loss, to include as secondary to diabetes mellitus. The appellant contends that the Veteran’s hearing loss is related to his exposure to loud noise and in service and/or related to or aggravated by his diabetes mellitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The questions for the Board are whether the Veteran had a hearing loss disability that began during service or is at least as likely as not related to an in-service injury, event, or disease; or whether the Veteran had a hearing loss disability that is proximately due to or the result of, or aggravated by service-connected disability. The Board concludes that, while the Veteran had a diagnosis of bilateral hearing loss for VA compensation purposes and evidence shows that he had in-service noise exposure, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss is secondary to service-connected diabetes mellitus, or is otherwise related to an in-service injury or disease. Service treatment records show that no hearing defect was noted on enlistment examination in April 1969 or separation examination in March 1971. In the Report of Medical History in March 1971 the Veteran denied hearing loss. In April 2004 the Veteran reported that his hearing loss was related to his duties as a mortar fire crewmember in Korea. The Veteran reported in April 2004 that he attempted to locate hearing test results at prior employment locations. However, all records have been destroyed. He reported his employer when he first exited service but that they closed in 1983. On VA examination in June 2004, the Veteran reported that while in service he dropped a mortar round and then immediately noticed a decrease in hearing sensitivity. He stated that he did not report the incident at the time or at the time of his discharge. He had a lifetime of exposure to hazardous noise having worked in a textile factory prior to service, worked in a copper factory following service, and then working mostly driving a truck. Audiological evaluation showed hearing loss pursuant to 38 C.F.R. § 3.385, but there was no etiology opinion provided. At a hearing before a Veterans Law Judge in July 2008 the Veteran first reported that he noticed hearing problems in service, then that he did not recall when he first noticed his hearing loss. In July 2012 the Veteran reported that he had constant noise exposure in service as a mortar fire crewman in Korea. He stated that he wore hearing protection at work after service. Upon examination in May 2013, audiological evaluation showed hearing loss pursuant to 38 C.F.R. § 3.385. The examiner found that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner reported that audiometric tests at service separation in 1971 were within normal limits in both ears. The examiner noted that since hearing loss due to noise occurs at the time of the exposure and not subsequently, the Veteran’s current hearing loss was not caused or a result of his active service. An article regarding hearing loss was associated with the record in October 2013 and November 2014. The Veteran underwent an audiological assessment in June 2014 and reported a history of noise exposure. The examiner noted that in a quiet examination room without the use of amplification, the Veteran was able to follow the conversation and gave appropriate answers to case history questions. Audiological assessment showed hearing acuity within normal limits through 2000 Hz, sloping to a severe sensorineural hearing loss 3000 Hz through 8000 Hz. Word recognition scores were good bilaterally. A July 2015 audiological assessment showed pure tone thresholds to be normal low and mid frequency hearing dropping to a severe loss for the highest frequencies bilaterally. Tympanograms were within normal limits. Speech reception thresholds were in agreement with the pure tone findings. Word recognition scores were good bilaterally. The Veteran’s hearing remained stable from the previous testing. At the hearing before the undersigned in October 2015 the Veteran argued that his hearing loss was related to his exposure to loud noise in service. The Veteran stated that he was exposed to worse noise in service than after service. In December 2015 the Veteran was noted to have normal hearing. The record includes an April 2020 VA medical opinion which the Board has previously found inadequate. Pursuant to the Board remand, additional VA medical opinions were obtained in December 2020. The examiner included comment on medical literature and the Veteran’s reports of hearing loss. The examiner noted the Veteran entered service with possible hearing loss in the right ear at 6 kHz; however, there were no changes in hearing from enlistment to separation that were significant. The examiner noted that a significant shift was 15 dB or greater. The reason was that there can be a 10 dB shift as part of a normal intertest variability. The examiner found that there were no shifts in hearing. The first documented hearing loss was not until 2004, over 30 years after leaving service. The examiner noted that there have been some papers suggesting a delayed onset hearing loss in animals but this has not been shown in humans and is not considered an accepted position. The Veteran claimed hearing loss while in the service but the objective audiogram showed he did not suffer acoustic trauma. The examiner concluded that given the time course from when he left the service until when he documented hearing loss, the examiner agreed with the previous evaluators that the Veteran’s hearing loss was less likely than not related to his military service. The examiner also noted the contention that the Veteran’s hearing loss was from diabetes. As of the hearing loss and tinnitus disability benefits questionnaire (DBQ) from 2004 the patient denied any neurological findings related to his diabetes; 16 years have since passed. The referenced study showed no significant difference in hearing at the tested thresholds between diabetics and nondiabetics. For diabetes to affect hearing it would need to do it in a stepwise fashion as a result of decreased perfusion. The examiner noted that this is not the description of the Veteran’s hearing loss. As such, it is less likely than not that his hearing loss is related to his diabetes. The examiner found that the refenced paper showed no significant difference in the tested frequencies between diabetics and nondiabetics with regard to hearing loss. As such, there is no evidence to indicate that diabetes can aggravate hearing loss. Therefore, it is less likely than not that the Veteran’s diabetes affected his hearing loss. The Board concludes that, while the Veteran had a diagnosis of bilateral hearing, was exposed to loud noise in service and was in receipt of service-connected benefits for diabetes mellitus, the preponderance of the evidence weighs against finding that his hearing loss is related to service, or caused or aggravated by his service-connected diabetes mellitus. The Veteran reported that he experienced hearing loss in service, but there are no documented complaints or treatment in the contemporaneous treatment records. Further, the Veteran denied having any hearing loss on the Report of Medical History he completed at separation. The Board finds the December 2020 negative VA opinion probative because the examiner specifically concluded that there was no significant shift in hearing in service, that hearing loss was not identified until many years after service, and that although there are papers suggesting a delayed onset hearing loss in animals, this has not been shown in humans and is not considered an accepted position. As such, the preponderance of the evidence is against a finding that the Veteran’s hearing loss began in service or is related to his exposure to loud noise in service. As to the claim for secondary service connection, the December 2020 VA opinion reviewed the referenced study and said it showed no significant difference in hearing at the tested thresholds between diabetics and nondiabetics. Further, that for diabetes to affect hearing it would need to do it in a stepwise fashion as a result of decreased perfusion, and that this was not the description of the Veteran’s hearing loss. The examiner also concluded there was no evidence to indicate that diabetes can aggravate hearing loss. The preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss began during service, is otherwise related to an in-service injury, event, or disease, or is due to or aggravated by his service-connected diabetes mellitus, service connection is denied. 2. Entitlement to a TDIU, on an extraschedular basis, for the period prior to January 1, 2007. The Veteran's TDIU claim arose as part of an increased rating knee claim from the initial evaluation assigned, effective July 2, 2004, that was previously before the Board. See Rice v. Shinseki, 22 Vet. App. 449 (2009). As such, the period on appeal for entitlement to a TDIU extends from July 2, 2004. The Veteran was in receipt of a TDIU effective January 1, 2007. From November 7, 2005, to prior to January 1, 2007, the Veteran was in receipt of a total rating for his service connected left total knee replacement. Prior to November 7, 2005, the Veteran does not meet the schedular criteria for a TDIU set forth in 38 C.F.R. § 4.16(a). Specifically, the Veteran does not meet the criteria due to the fact that the Veteran's degenerative joint disease of the left knee and degenerative joint disease of the right knee, the only disabilities for which the Veteran was in receipt of service-connected benefits prior to November 7, 2005, were each evaluated as 10 percent disabling. However, entitlement to a TDIU may still be granted on an extraschedular basis where a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The questions before the Board is whether the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to November 7, 2005, and whether his right knee disability alone, precluded employability from November 7, 2005, to prior to January 1, 2007. The Board finds that TDIU is warranted for the period prior to November 7, 2005 but denied for the period from that date. In a VA Veteran’s Application for Increased Compensation Based on Unemployability on a VA Form 21-8940, dated in July 2007, the Veteran reported that he was prevented from securing or following any substantially gainful occupation by “all [service-connected]” conditions. He reported he last worked full time in November 2003 and his work history was truck driving. He indicated that he had an 8th grade education. On a VA Form 21-8940, dated in June 2015, the Veteran said his last job had been “driving” and he let work due to an accident. He reported previous employment in a copper tubing company up to 1990; computer making company up to 1984, and; textile company up to 1982. He identified an education level of one year of high school. In January 2004 the Veteran reported that he had a motor vehicle accident the prior November and had not been back to work since that time. In a May 2004 record associated with a claim for Social Security Administration (SSA) benefits the Veteran reported an employment history of physically demanding jobs. In June 2004 the Veteran reported that his left knee cracks and pops. The left knee was weak and stiff. It did not give way but was easily fatigable and he experienced a lack of endurance. His right knee hurt also but not like his left. He did not wear a knee brace and had not had surgery. Examination showed the left knee to be swollen. In October 2004 the Veteran had full range of motion of the knees, crepitance of both knees, and minimal swelling of the left knee. In another October 2004 treatment note, the Veteran was instructed to remain as active as possible due to his low back. However, it was reported that he should not lift heavy weights or run given his knee disease. In December 2004 the Veteran said his left knee pops and gives out on him at times. He could not walk long distances because of this and he had swelling. He started to have similar problems with his right knee as his left as time progressed. He had complaints of pain with weight bearing and prolonged ambulation. There was +1 effusion to the knees but no heat, swelling, or inflammation. There was full range of motion but considerable crepitation with range of motion. The knees were stable bilaterally and there was pain about the joint lines with palpation. There was patellofemoral joint grinding. He was noted to not be working since a tractor trailer accident in November 2003. In November 2005 the Veteran underwent a total left knee replacement. Records noted his history of bilateral knee pain of the medial compartments. He had medial unloader braces that he said he was unable to wear. The Veteran was in receipt of a 100 percent total rating for his left knee from November 7, 2007 to June 1, 2007. Pursuant to the recent remand, the claim was submitted to the Director of the Compensation and Pension Service (Director) for extraschedular consideration under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001); Wages v. McDonald, 27 Vet. App. 233 (2015). In a January 2021 opinion, the Director denied entitlement to TDIU on an extraschedular basis. The initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there’s sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58 (2019). Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope of review that determination. Wages, 27 Vet. App. 233; Ray, 31 Vet. App. at 66. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Based on a review of the record, and affording the Veteran the benefit of the doubt, the Board finds that entitlement to a TDIU for the period prior to November 7, 2005, on an extraschedular basis is warranted. In the period before the total rating was assigned for the left knee replacement, the Veteran was in receipt of service-connected benefits for left and right knee disabilities. These disabilities caused pain, crepitance, and effusion in both knees. In addition, the left knee was noted to give out and to have minimal swelling. His left knee caused an inability to walk long distances and his right knee had complaints of pain with weight bearing and prolonged ambulation. The Veteran’s employment history consisted solely of physical employment and his education was limited to one year of high school. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s knee disabilities rendered him unable to secure and follow a substantially gainful occupation for the period prior to November 7, 2005. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.