Citation Nr: 21026853 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-05 347 DATE: May 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) based on the statutory housebound rate is denied. FINDINGS OF FACT 1. The Veteran's military occupation specialty (MOS) made it highly probable that he was exposed to excessive noise during active service and as such, excessive noise exposure is conceded. 2. The Veteran's bilateral hearing loss is not caused by an event, injury or illness during active service, nor is it etiologically related to it. 3. The Veteran's bilateral hearing loss did not manifest to a compensable degree within one year of separation from active service. 4. The Veteran's service-connected disabilities prior to July 14, 2011, did not preclude him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work history and training. 5. The Veteran is not permanently housebound due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. 2. The criteria to establish TDIU are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 3. The criteria to establish SMC for factual or statutory housebound status are not met. 38 U.S.C. § § 1114(s), 5101, 5103, 5103A, 5107, 5121; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1966 to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019 and August 2020, the Board remanded the matters for further development. That development was completed, and the case has since been returned to the Board for appellate review. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). VA considers sensorineural hearing loss and tinnitus "other organic diseases of the nervous system" included among chronic diseases. Under 38 C.F.R. § 3.303(b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. The Veteran initially underwent a VA examination in connection with his claim of entitlement to service connection for bilateral hearing loss in October 2011. The examination report contains a diagnosis of bilateral hearing loss in conformity with VA disability standards. See 38 C.F.R. § 3.385. The Board finds the evidence establishes a current disability of bilateral hearing loss. The Veteran seeks service connection for bilateral hearing loss due to in-service noise exposure. Specifically, during a November 2020 VA examination, the Veteran asserted that he was not provided adequate hearing protection while performing infantry duties during service. The Board finds that the report of excessive noise exposure is consistent with the conditions of service as an infantryman. 38 U.S.C. § 1154(a). Thus, the Board finds the Veteran had excessive noise exposure during service. The remaining question in this case is whether the current disability may be presumptively or directly related to the Veteran's in-service excessive noise exposure. Where the Veteran's contentions are not supported in the record concerns evidence of hearing loss in service or records documenting an in-service event, injury, disease, or symptoms of a disease potentially related to a subsequent, now current, audiological disability. As it is, the evidence of record shows that the Veteran's service treatment records are silent for any complaint or diagnosis of bilateral hearing loss. There is no indication from the service entrance or exit examination reports that the Veteran complained of symptoms of hearing loss or auditory problems. The Veteran's entrance examination contains an audiological evaluation, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 6000 For ISO add (+15) (+10) (+10) (+10) (+5) (+10) As such, the Veteran's June 1966 entrance examination contain audiometric findings that are unclear as to the units used, and are as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT -5 -5 -5 10 15 2 LEFT 5 -5 -5 15 20 6 For the ISO-ANSI Conversion, audiometric findings for the June 1966 entrance examination are as follows: HERTZ 500 1000 2000 3000 4000 Average For ISO add (+15) (+10) (+10) (+10) (+5) RIGHT -5 (10) -5 (5) -5 (5) 10 (20) 15 (20) 12 LEFT 5 (20) -5 (5) -5 (5) 15 (25) 20 (25) 15 The Veteran's service treatment records also include a July 1968 separation examination that contains audiometric findings that are unclear as to the units used, and are as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 15 10 0 N/A 20 11.25 LEFT 10 10 -5 N/A 25 10 For the ISO-ANSI Conversion, audiometric findings for the July 1968 separation examination are as follows: HERTZ 500 1000 2000 3000 4000 Average For ISO add (+15) (+10) (+10) (+10) (+5) RIGHT 15 (30) 10 (20) 0 (10) N/A 20 (25) 21.25 LEFT 10 (25) 10 (20) -5 (5) N/A 25 (30) 20 In addition, in a July 1968 separation report of medical history, the Veteran specifically denied experiencing hearing loss. The Veteran's first report of hearing loss for the purpose of a claim for service connection for bilateral hearing loss was in his July 2011 claim, which was approximately 25 years following his separation from service. The first instance of hearing loss in the Veteran's post-service treatment notes is in the October 2011 VA examination report. These are factors which weigh quite heavily against a finding of service incurrence, including by continuous symptoms since service from which incurrence during active service would otherwise be presumed. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). In October 2011, the Veteran was afforded a VA examination. As noted above, the October 2011 VA examiner diagnosed the Veteran with bilateral hearing loss. The October 2011 VA examiner opined 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 stated that the Veteran had hearing within normal limits bilaterally at his enlistment audiogram in 1966 and that his hearing remained within normal limits bilaterally with no significant threshold shifts in his separation audiogram in 1968. This opinion was flawed because normal hearing on separation is not intrinsically fatal to claims of service connection for hearing loss and because the correct interpretation of the 1968 separation audiogram showed some degree of hearing loss, though not a disability. May 2019 Board Dec. at 12 (internal citations omitted). In a November 2019 VA medical opinion, the October 2011 VA examiner noted that the Veteran's report of noise exposure and his subjective report of hearing loss during military service were taken into consideration in the October 2011 VA opinion. The examiner again noted that the Veteran had hearing within normal limits bilaterally from 500 to 4000 Hertz in his 1966 enlistment and 1968 separation audio examinations. In addition, the examiner reported that the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. The examiner further noted that hearing thresholds were obtained below 0 decibels SPL which was not standard testing protocol. Rather, she indicated that standard protocol begins testing at 0 decibels SPL. She explained that if hearing thresholds were obtained beginning at 0 decibels SPL, there would not have been any perceived significant shifts in hearing. However, she noted that even with the perceived shifts, the Veteran's hearing was still within normal limits bilaterally at separation. The examiner stated that audiograms provide objective evidence of noise injury and that in the absence of objective audiometric evidence of noise injury while in service, an affirmative opinion that the Veteran suffered some latent undiagnosed noise injury is utter speculation and directly contradicts the objective evidence of record. In conclusion, she noted that her October 2011 opinion had not changed and that the Veteran's current hearing loss was less likely as not related to noise exposure during service. In a May 2020 VA addendum opinion, the October 2011 VA examiner noted that she converted the thresholds on the Veteran's 1966 enlistment and 1968 separation audiograms using ISO/ANSI standards. She indicated that the Veteran's hearing thresholds were within normal limits bilaterally on his 1966 enlistment audiogram with the conversions. She related that the Veteran's 1968 separation audiogram revealed hearing within normal limits from 1000 to 4000 Hertz with a mild hearing loss at 500 Hertz. She reported that there was no significant (greater than 10 decibels) threshold shifts at any frequency bilaterally. She stated that although the ISO/ANSI conversions suggest a mild hearing loss at one threshold in each ear at separation, hearing thresholds obtained during the VA examination in October 2011 revealed better thresholds in the low-to-mid frequencies than on his separation examination in 1966, which would suggest the active duty thresholds may have been elevated. The examiner explained that a significant shift for audiological purposes meant a hearing threshold shift of greater than 10 decibels at any given frequency from test to test, which did not occur in this case. She also related that routine hearing evaluations did not test below 0 decibels and that testing below 0 decibels could erroneously suggest a threshold shift when, in fact, hearing is still well within normal limits. As a result of these findings, the examiner stated that her opinion had not changed. She again opined that the Veteran's hearing loss was less likely as not related to noise exposure during military service based on in-service audiograms which revealed no significant hearing threshold shifts bilaterally. In an August 2020 VA medical opinion, another VA examiner opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by service, to include military noise exposure. The examiner noted that the Veteran had normal hearing at enlistment and at separation and that there was no significant threshold shifts on active duty, even when considering ASA to ANSI conversions. The examiner related that research suggests that based on current knowledge of cochlear physiology, there is no sufficient scientific basis for the existence of delayed-onset hearing loss. In November 2020, the Veteran was afforded a VA examination. The Veteran was diagnosed with bilateral hearing loss. The VA 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 military service. The examiner noted that while the Veteran's MOS had a high probability of noise exposure, there was no significant permanent shift in hearing thresholds between entrance and separation, which is objective evidence of no permanent auditory damage during service. The examiner also indicated that there was no report of decreased hearing in the claims file or at separation from service. The examiner concluded that although noise exposure is conceded, and that the relationship between noise, auditory damage, and hearing loss is well-documented, auditory damage and hearing loss are not conceded based on noise alone. Therefore, the examiner found that a nexus was not established. The Board finds that the Veteran's current disability of bilateral hearing loss is neither caused by an event, injury or illness during active service, nor is it etiologically related to it. The Veteran's bilateral hearing loss was not present during service. Although there are intermittent ISO-ASA conversion scores that are more than 20 dB, the scores are not consistent. Moreover, the May 2020 and August 2020 VA opinions expressly considered the ISO-ASA conversion and found these results to be within test variability. The Board cannot find a notation of a chronic disease in-service. Similarly, there is not a basis to find that the Veteran's bilateral hearing loss was manifested to a compensable degree within one year of the Veteran's service separation. Finally, the Board notes that the August 2020 VA opinion indicates that there is an insufficient scientific basis to conclude that noise exposure would result in delayed-onset hearing loss weighs heavily against continuity of symptomatology or nexus. If such a possibility has not been established scientifically, the Board cannot hold that lay evidence of persistent, progressive symptoms of hearing degradation or assertions of a relationship simply cannot have probative value. Thus, the Board concludes that service connection for bilateral hearing loss is not warranted on direct or presumptive bases. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by non-service connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to TDIU for the period when the 100 percent rating is in effect. Regardless, the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that a TDIU rating may still form the basis for assignment of special monthly compensation under 38 U.S.C. § 1114(s)). In Bradley, supra, the Court held that for the purposes of 38 U.S.C. § 1114(s), a combined 100 percent rating does not satisfy the requirement of "a service-connected disability rated as total," whereas a 100 percent rating assigned pursuant to a TDIU would satisfy that requirement. Bradley, 22 Vet. App. at 290-93. The Veteran is currently service-connected for unspecified trauma and stressor-related disorder rated as 100 percent disabling, effective July 14, 2011; type II diabetes mellitus rated as 10 percent disabling, effective from March 21, 2012, and as 20 percent disabling, effective from September 17, 2019; degenerative joint disease of the left knee rated as 10 percent disabling, effective from February 2, 2005; and a left knee post-operative scar rated as noncompensable, effective from July 14, 2011. The Veteran's combined evaluation is 100 percent from July 14, 2011. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU rating for another service-connected disability may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s). Id. SMC at the housebound rate is payable by law where the Veteran has a single service-connected disability rated at 100 percent and has additional service-connected disabilities independently ratable at 60 percent. 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350. As there remains potential benefit, the Board will consider entitlement to TDIU based on the Veteran's service-connected disabilities other than his psychiatric disorder. As a 100 percent rating has been assigned for the Veteran's unspecified trauma and stressor-related disorder, that disability will not be considered in determining entitlement to TDIU. The Veteran's remaining disabilities do not meet the regulatory requirements for TDIU; no other service-connected disability is rated at 60 percent or more, and none are rated at 40 percent or more with a combined rating of 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Furthermore, nothing in the treatment records or examination reports suggests any of the Veteran's other service-connected disabilities cause the level of functional impact contemplated by the criteria for establishment of TDIU. Social Security Administration (SSA) disability records indicate that the Veteran stopped working in September 2002 because the trucking company that employed him went out of business. In a September 2019 VA mental disorders examination report, the Veteran indicated that he quit truck driving when his company went out of business and that he "wasn't very ambitious." In fact, in an October 2011 VA general medical examination, the examiner noted that the Veteran did not have any condition that impacted his ability to work that were not addressed in specific VA examination reports, including audiology, psychiatric, and knee examinations. In an October 2011 VA knee examination report, the examiner indicated that the Veteran's left knee disability impacted his ability to work manual labor, but that it did not impact sedentary work. In an October 2011 VA audiology examination, the examiner noted that the Veteran's hearing loss impacted his ordinary conditions of daily life, including the ability to work, in that the Veteran had difficulty hearing his television at low levels. In a September 2019 VA examiner noted that the Veteran had no complications from diabetes. The examiner also reported that the Veteran's diabetes did not impact his ability to work. (Continued on the next page) Therefore, based upon the evidence of record, the Board finds there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities separate from his psychiatric disorder and therefore extraschedular referral for TDIU is not warranted. 38 C.F.R. § 4.16(b). As the preponderance of the evidence is against referral of the TDIU claim on an extraschedular basis under § 4.16(b), the benefit of the doubt doctrine is not applicable, and TDIU based on service-connected disabilities other than unspecified trauma and stressor-related disorder must be denied. 38 U.S.C. § 5107(b). By extension, SMC at the housebound rate on and after July 14, 2011, must also be denied. As the preponderance of the evidence is against entitlement to SMC housebound under 38 U.S.C. § 1114(s), the benefit of the doubt doctrine is not applicable, and SMC must be denied. 38 U.S.C. § 5107(b). J. BARONE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda 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.