Citation Nr: 21027752 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-65 609 DATE: May 6, 2021 ORDER 1. Entitlement to service connection for bilateral hearing loss is denied. 2. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from November 23, 2015. 3. TDIU is denied prior to November 23, 2015. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's bilateral hearing loss was not incurred in service, did not manifest within one year of separation, and is not related to acoustic trauma in service. 2. From November 23, 2015 the Veteran was unable to secure or follow substantially gainful occupation due to his service-connected diabetic peripheral neuropathies. 3. Prior to November 23, 2015, diabetic peripheral neuropathy was not service-connected or diagnosed. CONCLUSIONS OF LAW 1. The criteria for entitlement to bilateral hearing loss are not met. 38 U.S.C. § 1110, 1112, 1113; 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to TDIU from November 23, 2015 are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 3. The criteria for entitlement to TDIU prior to November 23, 2015 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to October 1970, including in the Republic of Vietnam. This case presents a lengthy procedural history. The appeal stems from a December 2013 rating decision that denied entitlement to service connection for bilateral hearing loss. In January 2019, the Board denied the claim of entitlement to service connection for hearing loss. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a joint motion for partial remand (JMPR), the Court vacated the Board's January 2019 decision in February 2020 with respect to the matters on appeal and remanded it to the Board. In an August 2020 Remand, the Board of Veterans' Appeals (Board) took jurisdiction of the issue of entitlement to TDIU prior to November 9, 2018 as part and parcel of an increased rating claim for diabetes mellitus type II (diabetes). The Board adjudicated the increased rating appeal but remanded TDIU as inextricably intertwined with the hearing loss appeal. 1. Entitlement to service connection for bilateral hearing loss is denied. Generally, direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran contends his hearing loss stems from his time in service where he served as a radio operator. There is no controversy regarding the first two elements of service connection: a current disability of hearing loss and in-service noise exposure. These elements are established. The issue at hand is the nexus between the two. In the JMPR, the Parties agreed that a November 2013 medical addendum was inadequate. The examiner stated it was less than likely the Veteran's hearing loss began in service because "although, a shift was noted from enlistment to separation, the veteran's hearing was still within normal limits at all frequencies tested." She also cited to medical literature supporting her conclusion that "there is no sufficient scientific basis for the existence of delayed-onset hearing loss." The Parties agreed that this rationale was inadequate because the examiner did not explain if the threshold shift that Appellant had between entrance and separation, and noted by the examiner, could be supportive of an etiological relationship. More specifically, the examiner does not explain her conclusion that is, why does the fact that the shift was still in normal limit weigh against a finding of a connection to conceded hearing loss? The JMPR instructed the Board to remand for another VA examination and opinion. Pursuant to the JMPR, the Board remanded the issue in August 2020, resulting in an October 2020 examination and opinion. The file was provided for medical addendum to an audiologist. The audiologist reviewed the remand, the joint motion for remand, medical records, and the complete claims file. The audiologist opined that it is less likely than not that hearing loss was incurred in service or caused by an in-service injury, event, or illness. She explained: Per records review, enlistment exam dated 05/15/68 revealed normal hearing for both ears from 500-6000 Hz with thresholds measuring at 5dB across all frequencies. Separation exam dated 10/20/70 continued to reveal normal hearing for both ears from 500-6000 Hz with thresholds measuring at 20dB across all frequencies. Records are silent for other in-service hearing exams to review. Upon comparison of enlistment and separation[] exams, it appears there was a 15dB threshold shift throughout all frequencies. The undersigned does not find this threshold shift to be significant as it occurred throughout all frequencies evenly suggesting this may have been a testing environment or equipment calibration issue versus noise induced hearing loss. At the time, due to the 15dB threshold shift across all frequencies, the veteran should have been re-tested. Upon further review of records, records are silent for hearing exams between 1970 and 2013. Should hearing loss have been incurred due to service time, the veteran would have sought hearing care immediately and not 40+ years later. Upon review of the 2013 exam, the veteran[']s hearing remained relatively normal with the exception of a noise notch hearing loss at 3000-6000 Hz for both ears. Although there was a noise notch present on the 2013 exam, it should be noted that the veteran subjectively reported at his C&P exam that his occupation involved noise. It is at least as likely as not the veteran[']s current hearing loss is related to his occupational noise exposure. The weight of medical literature indicates that noise induced hearing loss demonstrates its worst effects immediately following exposure that stabilizes or improves over time. Military noise effects would have been evident upon the separation hearing exam referenced above at 3000-6000 Hz should noise from the service have been the cause. However, the same decibel of threshold shift was noted at every frequency suggesting environmental factors or equipment calibration factors caused the overall threshold shifts at the time of the separation hearing exam. Overall, it is less likely as not the veteran[']s bilateral hearing loss was caused or incurred due to military noise exposure. The Board finds that this opinion cures the deficiencies identified in the JMPR and substantially complies with the Board's remand directives. The opinion explains at length why the threshold shifts noted in service weighed against finding a connection to current hearing loss. Not only did the examiner explain the likely basis of the threshold shift, she also explained, based on medical expertise and literature, that if the hearing loss were due to military noise it would have been evident in the separation examination that was close in time to the noise exposure. Moreover, she explained why the notch noise at 3000-6000 Hz did not reflect hearing loss due to noise in service. The finding was that the more likely etiology of hearing loss was noise exposure after service, specifically the 25 years he worked as a machine operator. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran objects to the examiner's expectation that he would have sought treatment immediately and not wait for 40+ years, the Board observes that this is only one of the reasons given for the examiner's opinion. Even without this reason, the opinion still stands supported by the remainder of her rationale and does not detract from the adequacy of the opinion. No further action is necessary to comply with the JMPR or the Board remand. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. Principi, 287 F.3d 1377 (2002). To the extent the Veteran asserts his hearing loss began during active-duty service, or within one year thereafter, he is not competent to provide a diagnosis of hearing loss or determine that any symptoms were manifestations of a sensorineural hearing loss, or of hearing loss for VA compensation purposes generally. The diagnosis of the appellant's hearing loss is medically complex, as diagnosis of hearing loss requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board thus gives more probative weight to the competent medical evidence of record; namely, the October 2020 VA audiologist's opinion. In the absence of any competent nexus evidence supporting a relationship between noise exposure in service and current hearing loss, the only probative evidence weighs against the claim and it must be denied on a direct service connection basis. As noted by the examiner, lay and medical evidence do not show symptoms of hearing loss for four decades after service. The available evidence thus preponderates against finding manifestations sufficient to identify chronic hearing loss in active-duty service, or within one year thereafter. Thus, service connection is not warranted on a presumptive basis. 38 C.F.R. § 3.307, 3.309. The claim is denied. 2. A TDIU from November 23, 2015, but no earlier, is granted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. § 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A claim for service connection for diabetes was filed on September 20, 2012. The claim was granted and the Veteran appealed the initial assigned rating. As laid out in the introduction, the Board took jurisdiction of entitlement to TDIU as part and parcel of the higher rating claim for diabetes. Therefore, the appeal period for TDIU begins on September 20, 2012. A March 2020 rating decision granted entitlement to a TDIU effective November 9, 2018. Thus, the issue before the Board is whether the Veteran is entitled to a TDIU from September 20, 2012 to November 8, 2018. As explained below, the Board grants entitlement to a TDIU effective November 23, 2015, but denies entitlement prior to this date. From September 20, 2012 to December 12, 2012, service connection was in effect for diabetes with erectile dysfunction at 20 percent and tinnitus at 10 percent. The combined disability rating was 30 percent. Therefore, the Veteran did not meet the requirements for a TDIU on a schedular basis under 38 C.F.R. § 4.16 (a). From December 13, 2012 to November 22, 2015, service connection was in effect for diabetes with erectile dysfunction at 20 percent, posttraumatic stress disorder (PTSD) at 50 percent, and tinnitus at 10 percent. The combined disability rating was 60 percent. Therefore, the Veteran did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a). Effective November 23, 2015, the Veteran was granted service connection for diabetic peripheral neuropathy (PN) of the right and left lower extremities, with a 20 percent rating assigned for each extremity. This increased the combined disability rating to 70 percent. This, together with the 50 percent rating for PTSD, satisfied the schedular requirements for a TDIU under 38 C.F.R. 4.16 (a). Since this date, the Veteran has continued to meet the requirements as he has only been awarded additional service connection and higher ratings. Service connection for diabetic PN of the bilateral upper extremities was granted effective October 14, 2017, with a 20 percent rating assigned for each extremity. The Veteran was afforded a VA diabetic sensory-motor PN examination on September 2013. The examiner affirmatively found that the Veteran did not then meet the criteria for, nor had he ever been diagnosed with, diabetic PN. In a September 2013 PTSD VA examination, the Veteran reported he had worked the 25 years before he retired as a machine operator and the 2-3 years before that as a fork-lift driver. In a 2021 PTSD examination, he reported that he retired in 2000 after working 25 years as a flush machine operator at a plant. VA treatment records prior to November 23, 2015 reveal no diagnosis of PN. On November 23, 2015, a VA treatment record shows the Veteran was encouraged to follow up with primary care about "diabetes and likely neuropathy in his feet." This is the first indication in the record of diabetic peripheral neuropathy. This recommendation was reiterated in October 2016, February 2017, and March 17, 2017. The effective date for service connection for PN the bilateral lower extremities is tied to this record. The Veteran was afforded a VA PN examination on October 14, 2017. The examiner noted a diagnosis of diabetic PN of the bilateral lower extremities in 2016, and a diagnosis of diabetic PN of the bilateral upper extremities in 2017. The examiner concluded that the Veteran's diabetic PN impacted his ability to work. The examiner stated the Veteran would be disqualified from obtaining a commercial driving license and operating a commercial vehicle of any type due to his diabetic PN. The Veteran was afforded another VA PN examination in December 2018. The examiner concluded that the Veteran's diabetic PN impacted his ability to work; namely, that he "cannot feel with his feet or hands and so will have trouble operating machinery." The Veteran's entire career was spent operating commercial machinery and vehicles. When considering the Veteran's employment background and the medical evidence of record, the Board finds the Veteran's service-connected diabetic PN prevents him from maintaining substantially gainful employment. Given the Veteran's extensive history as a machine operator, the Board finds he lacks the education and skills that would allow him to obtain and maintain gainful employment which would accommodate his functional limitations in another sector. The Board grants entitlement to a schedular TDIU effective November 23, 2015, the date that he met the schedular criteria under 38 C.F.R. § 4.16(a) and the date of the first indication of the disability of peripheral neuropathy. However, the evidence preponderates against entitlement to TDIU prior to November 23, 2015. Peripheral neuropathy was neither service-connected nor diagnosed prior to this date, thus, the record does not indicate symptoms of service-connected neuropathy precluded the Veteran from operating machinery or vehicles before November 23, 2015. The Veteran has not asserted, and the record does not show, that any other disability prevented him from securing or following substantially gainful employment prior to this date. The Board grants TDIU from November 23, 2015 but denies entitlement prior to that date. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.