Citation Nr: 21025078 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-21 694 DATE: April 27, 2021 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence is in relative equipoise at as to whether the Veteran’s tinnitus began during service. 2. The evidence does not support the finding that the Veteran’s current hearing loss occurred during or was otherwise caused by his service, even though he may have temporarily experienced some hearing problem after a gun fire incident during service. 3. The evidence does not show that the Veteran is not precluded from securing and following substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for 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, 3.385. 3. The criteria for TDIU rating have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1967 to August 1969, including service in the Republic of Vietnam. In December 2020, the Board remanded the service connection claims for bilateral hearing loss and tinnitus as well as the TDIU claim for further developments pursuant to a Memorandum Decision by the United States Court of Appeals for Veterans Claims (Court) dated December 2019. Such developments have since been completed and the Board is satisfied that there has been substantial compliance with the remand directives. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Tinnitus The Veteran is seeking service connection for tinnitus, which he believes, is a result of military noise exposure during service. Service personnel records show that he was deployed to Vietnam during Vietnam war period and his military occupational specialty (MOS) was amphibious military vehicle operator. As such, military noise exposure is conceded. VA examination in February 2015 diagnosed the Veteran with tinnitus. At his Board hearing in May 2018, the Veteran testified that he first noticed ringing in his ears after he returned from Vietnam, and that he later got used to it and did not pay attention to it. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Veteran’s reports on the timing of the onset of his tinnitus are inconsistent. However, giving him the benefit of doubt, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s recurrent tinnitus started during service. Accordingly, service connection for tinnitus is granted. Bilateral Hearing Loss The Veteran is seeking service connection for bilateral hearing loss, which he believes, is a result of military noise exposure during service. At his Board hearing in May 2018, the Veteran testified that while at a firing range at Fort Knox, and while the Veteran was helping a fellow service member with his shooting performance by talking to him without wearing ear plugs, the service member fired a shot close to the Veteran’s left ear, which caused noticeable hearing loss for a few days. He also stated that he was not sure whether his hearing subsequently cleared up or whether he just got used to it. He also indicated that it was hard to say when he first started experienced hearing loss, but guessed that it probably started after he returned from Vietnam when people complained that he turned up the volume of TV. In addition, he reported that he had been exposed to loud factory noise after service without hearing protection. As discussed above, the Veteran’s exposure to military noise during service is conceded. However, military noise exposure alone is not considered to be a disability, rather, it must be shown that the military noise exposure caused a hearing loss disability for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A February 2015 VA examination diagnosed the Veteran with bilateral hearing loss for VA purpose. The audiogram showed the following results: HERTZ 500 1000 2000 3000 4000 Maryland CNC R. Ear 40 45 55 60 60 94% L. Ear 40 55 55 70 70 94% However, the February 2015 VA examiner opined that the Veteran’s hearing loss was less likely than not (less than 50 percent probability) to have occurred during or been otherwise related to his noise exposure during service. The examiner explained that the Veteran’s hearing thresholds did not shift during service, and according to a study by the Institute of Medicine, there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after noise exposure. Service treatment records (STRs) showed that an audiological testing was conducted at the time of enlistment in November 1966, which shows the following results (with ISO-ANSI measurement in parenthesis) : HERTZ 500 1000 2000 3000 4000 R. Ear 15 (30) 10 (20) 15 (25) - 25 (30) L. Ear 25 (40) 15 (25) 15 (25) - 25 (30) Of note, prior to January 1, 1967, auditory thresholds were recorded in ASA units, they can be converted to ISO-ANSI measurement which is the current standard used in the VA regulations and VA examinations. The audiogram conducted at the separation physical showed the following results (with ISO-ANSI measurement in parenthesis) : HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 5 (15) 15 (25) - 15 (20) LEFT 25 (40) 20(30) 15 (25) - 20 (25) Of note, between January 1, 1967 and December 31, 1970, auditory thresholds were recorded in either ASA units or ISO-ANSI units, the Board will consider the recorded metrics under both standards, and use the unit measurements most favorable to the Veteran’s claim. Here, the Board will consider auditory thresholds at the time of separation under the ISO-ANSI standard, which is favorable to the Veteran as it results in a higher measurement of thresholds. Even considering the ISO-ANSI standard, the auditory thresholds for both ears at the time of the separation remained the same as or showed slight improvement than the thresholds at the time of the enlistment (except for a 5 point increase for the left ear at the frequency of 1000 Hertz). In February 2021, a VA examiner reviewed the Veteran’s claims file and provided a medical opinion pursuant to the Board’s December 2020 remand. The examiner discussed the Veteran’s report of acoustic trauma at Fort Knox when a gun fired near his left ear, causing temporary hearing loss and ringing for a few days. The examiner noted that the Veteran reported in his 2018 Board hearing that he was unsure if after the Fort Knox incident, his hearing had been improved or he had just gotten used to the symptoms. Based on the results of a separation audiogram, the examiner opined that the Veteran’s hearing had improved by the time of separation and any hearing decrease during service was temporary, as the objective evidence indicated that hearing at the separation was within normal limits with no significant threshold difference between the right ear and the left year. The examiner further noted that the Veteran had certain high thresholds in both ears as shown by the enlistment audiogram, which clearly and unmistakably existed prior to service, and was clearly and unmistakably NOT aggravated beyond its natural progression during service as shown by the separation audiograms. In addition, the examiner opined that hearing loss and tinnitus may occur together due to change or damage to the auditory system, or occur in isolation from each other, which indicates that they have separate etiologies. The examiner concluded that hearing loss could not cause tinnitus to get worse and tinnitus could not cause hearing loss to get worse. VA treatment records show that the Veteran first sought hearing loss treatment in June 2005, at which time, he reported gradually progressive bilateral hearing loss, most noticeable over the previous 10 years. He also reported having experienced acoustic trauma to the left ear when a 45 caliber gun was fired near his left ear without warning, causing temporary hearing gloss. According to the Veteran, he had exposure to the military noise exposure as an amphibious operator during his tour in Vietnam and exposure to occupational noise while employed in a factory for 10 years without hearing protection and eight years in a nuclear plant with hearing protection, as well as periodic firearms qualifications as a corrections officer. He stated that he had no prior use of the hearing aid. The assessment at that time was mild to moderate hearing loss in the right ear, and mild to moderately severe in the left ear. Here, the Board finds that the Veteran credibly reported that he was exposed to military noise during service, to include the gun fire incident occurred at Fort Knox which caused hearing problems for a couple of days. He also honestly stated that he was not sure whether his hearing was subsequently cleared up or he just got used to it. As the February 2021 VA examiner indicated, such hearing decrease during service was temporary, because the separation audiogram did not show significant threshold shifts comparing to the enlistment audiogram, In fact, the thresholds in both ears at the separation (using the favorable ISO-ANSI measurement) either remained the same as or showed slight improvement than the thresholds recorded at the time of the enlistment (except for a 5 point increase for the left ear at the frequency of 1000 Hertz). As such, the weight of the evidence does not support the finding that the Veteran experienced a permanent hearing loss during service. As to the Veteran’s contention that the noise exposure during service could potentially cause his current hearing loss disability, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of such a disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus in this case. For that reason, two VA medical opinions were obtained, but as discussed above, the opinions were against the claim. No medical opinion of record has been offered that challenges, undermines, or refutes the examiners’ opinions. In addition, the Veteran testified at his May 2018 Board hearing that he was not sure when he first started experiencing hearing problem and guessed that it probably started after he returned from Vietnam. VA treatment records show that he first sought hearing treatment in June 2005 when he reported that his had gradual progression of hearing loss over the previous 10 years, indicating the noticeable hearing loss progression started in 1995, which is approximately 26 years after he separated from his service. As such, the evidence does not support the finding the Veteran experienced hearing loss within one year after service or continuously experience hearing loss since service. Accordingly, the weight of the evidence does not support the finding that the Veteran’s current hearing loss occurred during or was otherwise caused by his service. Service connection for hearing loss is denied. TDIU The Veteran filed a TDIU claim in July 2014, claiming that he last worked in October 2011 as a corrections officer, and that he quit the job due to his service connected heart problem. He also reported that he had one year college education. At his Board hearing in May 2018, the Veteran testified that he found a construction job in 2017, but only worked for three days before he was terminated because he could not climb the ladders due to his heart condition. He also reported symptoms of light-headedness and leg problems which caused difficulty walking. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). The Veteran is currently rated at 60 percent for his heart disease, and this decision granted service connection for his tinnitus. As such, he meets the minimal schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). The next question will be whether the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation, in other words, incapable of performing the physical and mental acts required by the employment, regardless whether the Veteran can find employment or not. This is because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: (1) the veteran’s history, education, skill, and training; (2) 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 (3) 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 work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). At his VA heart examination in February 2015, the Veteran reported that he retired from the prison job due to this inability to climb up the patrol tower he was assigned to, that he applied for security jobs at the casinos in 2011, but never received an interview, and that he had 10 acres of property where he spent time gardening. The examiner opined that the inability to climb the tower was in part due to his service connected coronary artery disease (CAD), and more likely due to his peripheral vascular disease (PVD) which was secondary to his smoking. The examiner concluded that the Veteran’s heart condition may preclude him from walking or climbing for extended period of time, but he would be able to participate in less strenuous or sedentary work. At his VA heart examination in June 2011, the Veteran reported that he had experienced shortness of breath and dyspnea. He admitted that he had long history of cigarette smoking prior to 2010 and he still smoked one to two cigarettes daily. A VA examiner in February 2015 opined that the Veteran’s tinnitus did not impact his ability to work. VA treatment records in June 2008 showed that the Veteran smoked five to six little cigars a day at that time and he used to smoke up to a pack a day since 1958. VA treatment records in December 2018 showed that the Veteran continued to smoke several small cigars plus chewing tobacco daily, and that the Veteran reported that he had retired from working at a prison in Indiana and taken a lump sum payment when he retired. He also reported that he had gotten a construction job which lasted for two days because he could not climb up ladders or do jobs at a high level. Private treatment records show that the Veteran is diagnosed with hypertension, COPD, PVA and CAD. The Board finds that the record does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected heart disease and tinnitus. The Board acknowledges the Veteran’s statements that he ended his job with the prison and with a construction company due to his inability to climb ladders or towers and that his service connected CAD had caused functional impairment. However, these statements must be weighed against other evidence of record. First, the Veteran admitted in his May 2018 Board hearing, that his leg problems also contributed to difficulty in walking or climbing. Records show that he was diagnosed with hypertension, COPD, PVA and CAD, and the February 2015 examiner opined that the inability to climb the tower was in part due to his service connected coronary artery disease (CAD), but more likely due to his peripheral vascular disease (PVD), which was secondary to his smoking. As such, the evidence shows that the Veteran’s mobility impairment is caused not only by his service connected CAD, but also by non-service connected disabilities such as PVD. Second, the record does not show any probative opinion from any vocational specialist suggesting that the Veteran was unable to work solely due to his service-connected disabilities. In fact, the February 2015 examiner concluded that the Veteran’s heart condition may preclude him from walking or climbing for an extended period of time, but he would be able to participate in less strenuous or sedentary work. The February 2015 auditory examiner concluded that the Veteran’s tinnitus did not impact his ability to work. Finally, the Board considered the Veteran’s education and past working experience. The Veteran has one year college education, and he has extensive experience in law enforcement. While his physical limitations may indeed prevent his ability to engage in the same or similar employment to his previous work, there is no probative evidence of record indicating that the Veteran would be unable to secure and maintain work consistent with his education and occupational background. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board acknowledges that the Veteran’s service connected CAD result in difficulty with prolonged standing and climbing or other forms of strenuous physical activities. However, the Board finds that these symptoms have been adequately considered under his currently assigned disability ratings. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321 (a), 4.1. The Board does not doubt that the Veteran’s service-connected disabilities have an impact on his employability. However, after considering the evidence of record, both lay and medical, the Board finds that the preponderance of the competent and credible evidence does not reflect that the Veteran is unable to secure or follow substantially gainful employment due solely to his service-connected disabilities. The TDIU claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.