Citation Nr: 21032236 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-28 235 DATE: May 26, 2021 ORDER Service connection for tinnitus is granted. A total disability rating based on individual unemployability (TDIU) is denied. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to an increased rating for restrictive lung disease is remanded. FINDINGS OF FACT 1. The Veteran's current tinnitus was incurred in service. 2. Throughout the appeal period, the Veteran has been gainfully employed on a full-time basis. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. § 1101, 1110; 38 C.F.R. § 3.303. 2. The criteria for a TDIU are not met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to May 1992, October 2001 to September 2002, and February 2003 to February 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. 1. Service connection for tinnitus The Veteran contends that his current tinnitus was incurred in active service, to include as a result of exposure to daily engine noise while serving aboard a ship. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Here, the record shows a current tinnitus disability, as the Veteran has competently reported during a May 2016 VA examination and his January 2021 Board hearing that he experiences intermittent tinnitus of varying frequency and duration. Additionally, the Veteran's service treatment records support that he was routinely exposed to noise. Finally, the Veteran testified during his Board hearing that the onset of his intermittent tinnitus was during his active duty service. Notably, the Veteran is competent to testify regarding tinnitus, which is capable of lay observation, and there is no probative evidence contradicting his assertions. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). While there is a negative VA medical opinion of record, dated in May 2016, the Board finds that it is inadequate for rating purposes, as it failed to address the Veteran's competent reports of an onset of tinnitus in service. And, absent evidence to the contrary, the Veteran's statements regarding the onset of tinnitus in service are deemed both competent and credible. As such, the evidence is at least in equipoise as to a relationship between the Veteran's tinnitus and his service. Thus, resolving all doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).] 2. A total disability rating based on individual unemployability (TDIU) A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Board finds that a TDIU is not warranted, notwithstanding any schedular requirements, because the Veteran has been gainfully employed throughout the appeal period. Specifically, the Veteran has testified, and the record shows, that he worked for the City of Monroe, Ohio as a police officer from October 1999 until the end of January 2016 when he was medically retired due to his restrictive lung disease, which prevented him from performing his duties as a police officer. See March 2016 VA 21-8940; March 2016 VA Form 21-4192; January 2021 Hearing Transcript. However, he testified in January 2021 that, at the time he was medically retired, he was told he would be "rehire[d]...for this other job," and thereafter returned to work for Monroe City in April 2016 in a different capacity. He reported during VA treatment in April 2019 that he was working in the area of code enforcement for the city. Then, in January 2021, he confirmed that he was still working on a full-time basis, forty hours a week, and testified did not receive accommodations other than not being required to give three-day notice when taking certain types of leave. Though the Veteran testified as to occupational impairment caused by his restrictive lung disease, and to some reduction in income, there was no allegation of marginal or protected employment. To the extent that the Veteran was not working in February 2016 and March 2016 following his medical retirement, the Veteran has not alleged, and the record does not otherwise show that he was unemployable due to service-connected disability during that period. On the contrary, the Veteran testified that there were already plans for him to be hired for a different position with the city when he could no longer perform his job as a police officer. Moreover, the medical evidence does not support that the Veteran's respiratory disorder precluded gainful employment during that two-month period. Indeed, a May 2016 VA examiner noted that sedentary activity was not affected by his respiratory disorder, and that conclusion was consistent with a May 2015 disability evaluation for purposes of the Veteran's medical retirement. Of note, the Veteran's attending physician concluded in the May 2015 disability report that while the Veteran could not run or perform strenuous activities, he would perform well with activities of daily living and a desk job, he would be okay as long as he did not do strenuous activities, and he could perform jobs that did not involve running or heavy, etc., such as a desk job. And, the May 2015 physician and May 2016 VA examiner's conclusions are supported by the fact that, despite his work history and training as a police officer, the Veteran was rehired and has continued to maintain gainful employment in a different position with the city to the present. As a final matter, the Board is aware that it is remanding claims which could affect whether the schedular requirements for a TDIU are met. Nevertheless, because the Board is denying the Veteran's TDIU claim on the basis that the Veteran is and has been gainfully employed throughout the period on appeal, and because the Veteran's employment status is not dependent on disability ratings, the Board finds that the issues are not intertwined. Thus, while the Board acknowledges that the Veteran experiences occupational impairment as a result of his restrictive lung disease, the Board is unable to conclude that the Veteran's service-connected respiratory disorder renders him unemployable. Thus, the Board finds the Veteran's service-connected disability does not preclude him from securing and maintaining a substantially gainful occupation, and entitlement to a TDIU is not warranted. REASONS FOR REMAND 1. The issue of entitlement to service connection for bilateral hearing loss is remanded. Regarding the claim of entitlement to service connection for bilateral hearing loss, the Board notes that personnel records support that the Veteran was routinely exposed to noise in service. See October 2001 STR Reference Audiogram. However, the Veteran did not have a hearing loss disability for VA purposes when he underwent a VA examination in May 2016. See May 2016 VA Audiological Exam Report; see also 38 C.F.R. 3.385. Nevertheless, as the Veteran testified in January 2021 that his hearing has worsened since that examinations, the Board finds that he should be afforded another VA hearing loss examination on remand.] 2. The issue of entitlement to an increased rating for restrictive lung disease is remanded. The Veteran was last afforded a VA examination to evaluate his restrictive lung disease in May 2016, and the most recent pulmonary function testing (PFT) of record is dated in April 2015. Since the May 2016 examination, the Veteran has testified that his condition has worsened and that he believes he now has cardiac involvement. As such, the Board finds that a new examination is necessary. Additionally, updated and any outstanding treatment records should be obtained on remand. In this regard, the Veteran testified in January 2021 that he underwent pulmonary function testing at the VA Cincinnati sometime around the beginning of 2020; however, no PFT report is of record. The matters are REMANDED for the following action: 1. With any assistance required of the Veteran, obtain updated and outstanding treatment records (VA and private), if any, to include the results of any pulmonary function testing performed at the VAMC in Cincinnati, or any other VA facility. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current bilateral hearing loss. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. If, and only if, the Veteran has a current hearing loss disability for VA purposes in one or both ears, the examiner should respond to the following: Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's hearing loss is related to his period of active duty service, to include his conceded in-service noise exposure, and explain why or why not. Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. If an opinion is rendered, a complete rationale for that opinion must be provided. If it is not possible to provide the requested opinion without resorting to speculation, please state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts); in the record (additional facts are required); or in your own knowledge or training. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity his service-connected restrictive lung disease. The claims file must be reviewed by the clinician in conjunction with the examination. All appropriate tests and studies should be conducted, and the results reported in detail. In addition to objective test results, the clinician should fully describe the functional effects caused by the Veteran's disability, including the types of tasks which are restricted or impacted by his restrictive lung disease. For any opinion rendered, the clinician should provide a complete rationale. If the clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.