Citation Nr: 21023555 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-40 480 DATE: April 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; 3.304, 3.307; 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to August 1971. These matters return to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2016, the RO denied service connection for bilateral hearing loss and TDIU. The Board previously denied these claims in November 2018. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (“the Court” or CAVC). The Court granted the parties November 2019 Joint Motion for Partial Remand (JMPR) vacating the Board’s November 2018 decision and remanding the claims for further development. All other claims on appeal were dismissed. In November 2020, the Board remanded the Veteran’s claims for service connection for bilateral hearing loss to obtain a new VA examination consistent with the terms of the November 2018 JMPR and TDIU as inextricably intertwined. As will be discussed in more detail below, the Board finds substantial compliance with the Board’s November 2020 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends his bilateral hearing loss was caused by noise trauma in-service. The Board finds service connection is not warranted. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The elements of service connection are: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service,” also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. See also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). When service connection cannot be established on a presumptive basis, the Court has held that the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (1994). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Impaired hearing will be considered to be a disability under VA regulations when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or, when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 95 percent. 38 C.F.R. § 3.385. Turning to the relevant evidence of record, the Veteran’s service treatment records (STRs) do not indicate any complaints, treatment, or diagnoses related to hearing loss. Upon entrance, the Veteran’s bilateral hearing was clinically evaluated as normal. See November 1968 entrance examination. The Veteran’s audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 10 5 LEFT 0 0 5 5 5 The Veteran’s separation examination in April 1971 also revealed hearing that was clinically evaluated as normal. See April 1971 separation examination. Five months before separation, the Veteran’s audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 - 5 LEFT 15 5 5 - 5 During the Veteran’s separation examination, he specifically declined experiencing hearing loss and his ears were clinically evaluated as normal. Id. The Veteran’s Military Occupational Specialty (MOS) was a cook. See military personnel records. His DD-214 reflects completing education and training in food services and serving as an executive chef. See DD-214. Decades after separation, in October 2014, the Veteran completed an audiology consult reporting that he “feels that he may have hearing loss.” Treatment records reveal bilateral mild sensorineural hearing loss at 2000 Hz and moderate sensorineural hearing loss at 3000-4000 Hz. See October 2014 VA treatment records. The right ear remained at moderate sensorineural hearing loss through 6000 Hz while the left ear had moderately severe hearing loss from 6000-8000 Hz. Id. The Veteran’s word recognition score was 96 percent for both the right and left ear. Id. The Veteran was afforded multiple VA examinations to determine the nature and etiology of any hearing loss disability. The first examination occurred in December 2015. The examiner found the Veteran has bilateral sensorineural hearing loss based on his audiogram testing results. See December 2015 VA examination. The examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or the result of service. Id. The examiner reasoned that the Veteran’s STRs contained audiometric evidence that his hearing was within normal limits at the time of his pre-induction and separation physicals and he had not sustained any significant threshold shift. Id. The Veteran was afforded another VA examination in January 2021 wherein the examiner opined that the Veteran has bilateral sensorineural hearing loss based on his audiogram testing results. See January 2021 VA examination. The examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or a result of an event in-service. Id. The examiner reasoned that even though the Veteran was exposed to hazardous noise while in service, he did not have a hearing loss while in service. Id. Rather, his hearing loss most likely occurred as a mechanic on heavy equipment. Id. The examiner explained that the Veteran had an MOS of cook during service, obtained the Sharpshooters Badge, and served in Vietnam. Id. Following service, he worked as a mechanic on heavy equipment. Id. The examiner acknowledged the different audiogram results from entrance to separation but opined that the shift was not significant in hearing and was “certainly not in the high frequencies that would be indicative of a noise induced hearing loss.” Id. The examiner also recognized that the Veteran’s separation examination occurred in April 1971 with separation in August 1971 but opined that the Veteran’s hearing loss was most likely a result of working as a mechanic on heavy equipment after separation. Id. The examiner did not believe that the Veteran’s hearing loss worsened in the four months between examination and actual separation. Id. Indeed, the examiner opined that it was “very unlikely” that the Veteran suffered hearing loss from April to August in 1971 because there are no acoustic traumas that the Veteran related during that time. Id. The Board finds the January 2021 VA examination includes consideration of the Veteran’s medical history and set forth all pertinent findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). When considered with the entire evidence of record, the Board finds the examination report is adequate for adjudication of the Veteran’s service connection claim because it is based upon an accurate medical history and provides explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). It is undisputed that the Veteran has a diagnosis of bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran’s MOS notes he served as a cook, which is not normally associated with significant acoustic trauma. The Veteran completed basic combat training, is in receipt of a Sharpshooter Badge, and served in Vietnam. Thus, the Board finds that the Veteran was exposed to in-service acoustic trauma. In this case, the Veteran does not meet the presumptions for service connection under 38 C.F.R. §§ 3.307, 3.309. The Veteran’s bilateral hearing loss was not reported until decades after service and decades outside of the required one-year manifestation period. Indeed, the Veteran first reported hearing loss in approximately 2014. See October 2014 VA treatment records. Further, the record lacks continuity of symptomatology as there were no complaints of hearing loss after separation in 1971 until 2014. Thus, the presumptions for chronic conditions are not for application. When service connection cannot be established on a presumptive basis, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee, 34 F.3d 1039. Although the Veteran has a current disability and in-service noise exposure has been found, the preponderance of the evidence is against a finding of a nexus between the Veteran’s bilateral hearing loss and service. To this point, the Board finds highly probative the January 2021 VA examiner’s opinion that the Veteran’s bilateral hearing loss is most likely due to the Veteran’s post-separation work as a mechanic on heavy equipment. Indeed, this finding is corroborated by the medical and lay evidence of record indicating the Veteran worked as a mechanic on heavy equipment from at least 1998 through 2008. While the Board acknowledges the Veteran’s entrance and separation examinations show a change in audiogram results, the Board finds highly probative the January 2021 VA examiner’s opinion that the change is not indicative of a hearing loss disability or a significant shift at an auditory threshold. Further, as the examiner indicated, the Veteran experienced post-separation noise exposure that most likely caused his current bilateral hearing loss. The Board also finds highly probative the VA examiner’s opinion that the Veteran did not experience hearing loss between the April 1971 separation examination and discharge in August 1971 because the examiner provided a rationale in support thereof. Specifically, that the Veteran did not relate acoustic traumas during that time. When considered with the VA examiner’s opinion regarding the most likely etiology of the Veteran’s current bilateral hearing loss (post-separation employment as a mechanic) the Board finds a nexus to service has not been established. Based on the aforementioned, the Board finds the preponderance of the evidence is against an award of service connection for bilateral hearing loss. As such, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). REASONS FOR REMAND 2. Referral for consideration of TDIU on an extraschedular basis is remanded. The Veteran contends his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. The Veteran filed an increased rating claim also seeking TDIU on November 17, 2015. The Veteran was previously denied TDIU in a final November 2010 rating decision from which the Veteran did not appeal or submit additional evidence. Thus, the period on appeal for consideration of TDIU begins a year prior to the Veteran’s claim receipt date of November 17, 2015. 38 C.F.R. § 5110. The Veteran is currently service connected for posttraumatic stress disorder with a 30 percent rating effective May 12, 2010 and a 50 percent rating effective January 13, 2012; tinnitus at a 10 percent disability rating effective November 17, 2015; and a stress fracture of the third metatarsal in the right foot with a noncompensable rating effective January 13, 2012. See March 2016 rating codesheet. While the Veteran has a disability rated at 40 percent or more, his remaining service-connected disabilities do not bring the combined rating to 70 percent or more. As such, the Veteran has not met the schedular criteria for a TDIU rating at any time during the period on appeal. 38 C.F.R. § 4.16. If a claimant does not meet the threshold criteria, a TDIU rating may still be assigned but on a different basis. The VA has established 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 rating boards are required to submit all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director for the Compensation Service for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Turning to the relevant evidence of record, the Veteran obtained his GED. He has no other education or vocational training. The Veteran worked as a cook during service. Post-separation, the Veteran has a variety of experience. The most significant being a “heavy equipment mechanic” from 1989 through 2008 as indicated on the Veteran’s first application for TDIU. See July 2010 VA 21-8940. A vocational assessment in August 2020 indicates the Veteran worked as an equipment manager from 1989 through 2008 monitoring and repairing equipment. See August 2020 non-government treatment records. In a subsequent application for TDIU, the Veteran indicated only his employer without including a description of his work. See November 2015 VA 21-8940. A previous VA examination revealed the Veteran was employed as a heavy equipment mechanic for 30 years with prior work experience in a sawmill and other construction companies. See March 2012 VA examination. The Veteran also has experience as a salesman and parts manager from the late 1970s to the mid-1980s. See September 2010 VA examination. Initially, the Board notes the Veteran contended that he stopped working due to his service-connected PTSD. In his later TDIU application, he indicated he stopped working due to service-connected PTSD and right foot disability. SSA disability records show complaints of a knee problem and PTSD as the cause of the Veteran’s inability to work. See SSA records. The Veteran stated that his job required lifting various parts and pieces of equipment and carrying items different lengths. See SSA records. At the time of his SSA application, the Veteran indicated that he woke up due to pain and from PTSD and that PTSD impacted his memory. Id. In 2009, the Veteran indicated that he had difficultly focusing and concentrating on the job at times. See January 2009 treatment records. Within the Veteran’s SSA application, the Veteran’s spouse stated that his PTSD affects the Veteran’s memory and concentration. See SSA records. In 2010, the Veteran completed a mental status evaluation for Social Security Benefits wherein the examiner found that the Veteran can understand and remember one and two step instructions with mild to moderate difficulty. See September 2010 treatment records. His capacity to sustain attention to complete tasks is mildly to moderately limited. Id. Overall, his capacity to adapt to pressure of normal daily work activity is probably moderately limited at the time of the examination. Id. The Veteran reported elsewhere that he worked very long hours as a welder and heavy equipment manager and that he needed to concentrate very hard on his job. See September 2010 VA treatment records. He described problems with thinking and concentrating. Id. The Veteran explained that he worked in a job that required high levels of attention and concentration in construction using heavy equipment related to strip mine reclaiming, welding, electrical work, working with truck engines, forklifts, and a lot of heavy work. Id. He said that he worked very hard to keep his mind on tasks and said that he had to “push himself.” Id. In a December 2015 VA examination, the examiner found that the Veteran experiences occupational and social impairment with reduced reliability and productivity. See December 2015 VA examination. The Veteran indicated that he never missed work due to his PTSD symptoms. Id. He acknowledged difficulty focusing. Id. The examiner indicated the Veteran has a normal remote and recent memory with mildly impaired immediate memory. Id. In relation to his right foot disability, the Veteran described occasional sharp, burning pain with prolonged driving or stepping. See December 2015 VA examination. He stated that pain increased with prolonged driving or sometimes walking and stepping the wrong way. Id. The examiner opined that the Veteran experiences functional impact in the form of increased pain with prolonged standing and walking. Id. In 2016, a VA examiner indicated that the Veteran experiences functional impairment in the form of pain and lack of endurance when walking or with prolonged standing. See February 2016 VA examination. An independent vocational assessment was completed in August 2020 wherein the provider opined that when considering the Veteran’s service-connected disabilities together with the Veteran’s educational development and work history, the Veteran is completely unable to perform at any physical demand or skill level, even the sedentary, unskilled level of employment on a sustained basis. See August 2020 non-government treatment records. The provider reasoned that the Veteran’s foot condition prevents him from performing any of his past occupations, his balance and dizziness from tinnitus would be a danger to self and others at a work station around machinery, and the Veteran’s PTSD results in anxious mood, distractibility, difficulty focusing on tasks, sleep impairment, panic attacks in crows, irritability, anxiety, and mildly impaired immediate memory. Id. In sum, while the Veteran fails to meet the criteria for a schedular TDIU rating, he has presented ample evidence that he is unemployable due to his service-connected PTSD, tinnitus, and stress fracture of the third metatarsal in the right foot. Therefore, the Board finds that the criteria for referral to the Director, Compensation Service, for consideration of whether TDIU on an extraschedular basis is warranted. 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action:  Refer the claim for a TDIU to the Director, Compensation Service, for a determination under 38 C.F.R. § 4.16(b). Notify the Veteran and his representative of such action and (Continued on the next page)   determination. S. Merrick Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, Associate 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.