Citation Nr: 21027923 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 99-10 908 DATE: May 7, 2021 ORDER A total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED The issue of service connection for left ear hearing loss is remanded. FINDING OF FACT The Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from March 1973 to March 1976. Entitlement to TDIU. TDIU is on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) as part of an increased initial rating for the Veteran's lumbar spine disorder and associated right and left lower extremity radiculopathy. The appeal period for TDIU begins on May 14, 2001. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Service connection is in effect for spondylolysis, spondylolisthesis, and lumbar spondylosis with myelopathy, which is rated 40 percent, right and left lower extremity radiculopathy which are each rated 20 percent, and hemorrhoids which have a noncompensable rating. Because the radiculopathy is part of the lumbar spine disorder, the overall 60 percent rating is due to one disability. Therefore, the Veteran meets the schedular criteria for TDIU. A September 2003 letter from the Veteran's private orthopedic surgeon stated that his lumbar spine and radiculopathy symptoms "may force him to take a disability retirement." In October 2005, the Social Security Administration (SSA) determined that the Veteran had not engaged in substantial gainful activity at any time since September 30, 2003, and that he was disabled due to his lumbar spine disorder as of August 17, 2004. The SSA decision noted that the Veteran had a high school education and that his past relevant work history was as an auto mechanic. A September 2014 VA medical opinion states that the Veteran's lumbar spine and radiculopathy prevented him from performing any work that required lifting, bending, squatting, or carrying anything with any amount of weight. The clinician also stated that, although the Veteran could perform sedentary work, "due to the degree of pain from the low back, he likely will have trouble with this also." A February 2015 VA medical opinion stated that the lumbar spine and radiculopathy prevented any gainful employment involving physical labor. On an April 2015 TDIU application form, the Veteran reported that his lumbar spine prevented him from securing or following any substantially gainful occupation and that he last worked full-time in February 2003. On a September 2020 TDIU application, the Veteran stated that he last worked from 1999 to 2003 in auto repair, and that he was self-employed during that time. Given the severity of the Veteran's lumbar spine disorder and lower extremity radiculopathy, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation because of the lumbar spine and radiculopathy disorders. His past work history as an auto mechanic involves physical labor, which VA examiners have stated he cannot perform. Additionally, employment involving non-physical labor would also be difficult because sitting would irritate his low back symptoms, as the September 2014 VA examiner indicated. Therefore, the Board finds that TDIU is warranted and the appeal is granted. REASONS FOR REMAND The issue of service connection for left ear hearing loss is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: In June 2019 and August 2020, the Board stated that the Veteran's left ear hearing loss did not preexist service and that an opinion stating such was inadequate. The Board also stated that an opinion that relied solely on the lack of an in-service threshold shift in hearing or on the lack of in-service hearing loss was inadequate. The RO has again not considered these directives from the Board. The February 2021 VA examination report and April 2021 medical opinion stated that hearing loss preexisted service, and because there was no threshold shift or complaints of difficulty hearing in service, hearing loss was not caused by in-service noise exposure. In service treatment or a diagnosis of hearing loss is not required for a grant of service connection. See 38 C.F.R. § 3.303(d). The RO has continued to not comply with Board remand directives and VA regulation. The RO's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). The April 2021 medical opinion is inadequate, and remand is again necessary. 2. Obtain a VA opinion, from an audiologist who has not previously provided an opinion in this case, as to the nature and etiology of his left ear hearing loss. If necessary to respond to the inquiries below, schedule the Veteran for a VA audiological examination. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address whether left ear hearing loss was caused by in-service noise exposure. THE EXAMINER IS ADVISED: The examiner MUST NOT provide an opinion that states that hearing loss was not caused by service merely because there was no in-service hearing loss and/or there was no in service threshold shift. The examiner must consider all the evidence of record. THE EXAMINER IS ALSO ADVISED THAT THE VETERAN'S HEARING LOSS DID NOT BY LAW PREEXIST SERVICE. THE AUDIOLOGIST IS REQUIRED TO ACCEPT THIS FACT WHEN PROVIDING THE OPINION. The examiner's attention is drawn to the following: *Service personnel record (SPR) indicating that the Veteran worked as a wheel vehicle mechanic in service. VBMS Entry 8/8/2012, p. 2. *July 1973 service treatment record (STR) indicating that the Veteran was enrolled in a hearing conservation program. VBMS Entry 8/7/2014, p. 18. *January 1976 report of medical history at service separation on which the Veteran indicated he had ear, nose, or throat trouble but indicated that he did not have hearing loss. VBMS Entry 2/2/1973, p. 5 6. *January 1976 physical examination for service separation which includes audiometric testing results. VBMS Entry 9/23/2003, p. 5-6. *November 1995 audiogram indicating normal hearing. VBMS Entry 2/22/2002, p. 61. *October 2009 VA treatment record in which the Veteran was treated for complaints of clogged ears. VBMS Entry 10/31/2011, p. 26. *December 2009 VA treatment record where the Veteran reported ringing in the left ear. VBMS Entry 10/31/2011, p. 20. *January 2010 VA treatment record where the Veteran reported difficulty hearing. VBMS Entry 10/31/2011, p. 4. *March 2010 VA treatment record including audiometric testing results and that he had a t tube put in his left ear in November 2009. VBMS Entry 10/31/2011, p. 3. *March 2012 VA treatment record stating the results of an audiogram. VBMS Entry 5/9/2018, p. 90. *July 2012 VA treatment record indicating the results of a March 2012 audiogram and indicating that the Veteran had asymmetric hearing loss with sensorineural hearing loss in the left ear. VBMS Entry 5/9/2018, p. 24-29. *January 2014, August 2019, and February 2021 VA examination reports indicating left ear hearing loss and stating a diagnosis of left ear sensorineural hearing loss. *August 2016 private audiometric test results. VBMS Entry 5/7/2019, p. 1. *May 2019 statement from the Veteran about his hearing loss and in-service noise exposure. *August 2019 VA treatment record which includes audiometric test results and states that the Veteran had left ear sensorineural hearing loss. VBMS Entry 12/4/2019, p. 20-21. *August 2019 VA treatment record indicating that the Veteran was provided a hearing aid for his left ear. VBMS Entry 12/4/2019, p. 19. *September 2019 VA otolaryngology treatment record stating that the Veteran's left ear hearing loss fluctuated and was exacerbated by nasal congestion, that the hearing loss appeared with dizziness episodes, and that a hearing aid did not improve his hearing difficulties. VBMS Entry 12/1/2020, p. 61. *May 2020 VA neurology treatment record stating that the Veteran's hearing loss symptoms had been present for approximately 10 years and that the hearing loss was associated with dizziness, vertigo, and congestion which was helped by antihistamines and decongestants, and that the hearing loss fluctuated. VBMS Entry 12/1/2020, p. 32-36. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, 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.