Citation Nr: 21041456 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-23 765 DATE: July 9, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran's right ear hearing loss was not shown as chronic in service, did not manifest to a compensable degree within the applicable presumptive period, a continuity of symptomatology is not established and is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1972 to February 1976. These matters come before the Board of Veterans' Appeals (Board) from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in April 2020 and June 2020, at which time the issues were remanded for additional development, namely to obtain updated treatment records and an etiology opinion regarding the right ear hearing loss. Updated VA treatment records have been associated with the record and a July 2020 letter requested the Veteran complete an appropriate authorization form to allow VA to obtain treatment records on his behalf. An etiology opinion was obtained in March 2021. The Board therefore determines that there has been substantial compliance with the remand in connection with the claims and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). In January 2018, the Veteran testified before a hearing conducted by a Veterans Law Judge who has since retired. A hearing transcript is associated with the record. The Veteran was notified that the Veterans Law Judge who conducted the January 2018 hearing was no longer employed by the Board and given an opportunity to reschedule for a new hearing with a new Veterans Law Judge in a May 2021 VA correspondence. The Veteran declined a new hearing in a May 2021 response. The matter now returns to the Board. Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 38 C.F.R. § 3.307(a), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309(a). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for right ear hearing loss is denied. The Veteran contends that his military specialty as an infantry machine gunner exposed him to hazardous noise which caused his current right ear hearing loss. See January 2018 Hearing Transcript (pg.6). A July 2012 VA audiological examination revealed sensorineural hearing loss in his right ear. Therefore, the Veteran has hearing loss for VA purposes under 38 C.F.R. § 3.385 and a current disability is established. The Veteran's service treatment records note on his entrance audiology examination that his hearing was normal in December 1972. In February 1976, the Veteran's separation audiology examination noted threshold shifts on various decibel levels, but no hearing loss was reported. In the Veteran's post-service treatment records, there are various complaints of hearing loss and hearing difficulty. The earliest complaint was in November 2011. In February and March 2012, it was noted that the Veteran had difficulty hearing and wore a hearing aid. In the March 2014 Decision Review Officer (DRO) Hearing, the Veteran stated that he noticed his hearing getting worse about two years prior. The Board has first considered whether service connection for right ear hearing loss is warranted on a presumptive basis. However, the available evidence fails to show that the Veteran manifested right ear hearing loss in his ear to a compensable degree within the one year following his release from active duty. The earliest diagnosis of hearing loss in his right ear was in July 2012, more than 30 years after service. Therefore, presumptive service connection for right ear hearing loss is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In the July 2012 VA examination, the examiner opined that the Veteran's right ear hearing loss was less likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner reasoned that the Veteran had a normal audiogram at separation and there was no evidence in the literature that noise exposure causes delayed onset hearing loss. The Board found this opinion to be inadequate in its April 2020 remand. This opinion is therefore afforded little, if any, probative weight. An addendum opinion was provided in October 2012. The examiner opined that the Veteran's right ear hearing loss was not due to complaints of documented ear problems. Instead, the Veteran's ear problems were due to excessive ear wax in his ear canals which was removed. The examiner concluded that this condition does not cause permanent hearing loss in the high frequencies which was revealed on examination. However, the examiner did not address the Veteran's conceded noise exposure while in service and therefore, this opinion is deemed inadequate for VA purposes. This opinion is therefore afforded little, if any, probative weight. The Veteran was afforded another VA examination in December 2019, where the examiner opined that the Veteran's right ear hearing loss was less likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner reasoned that the Veteran's service treatment records indicated no significant shift in hearing thresholds greater than normal measurement variability from enlistment to separation and there was no evidence of permanent auditory damage on active duty. The examiner further stated that there was no record of complaint or treatment of the claimed condition at separation. The examiner noted that although the Veteran had an military occupational specialty (MOS) with a high probability of hazardous noise exposure, Expert Badge in Hand Grenade and Sharpshooter Badge for Rifle M-16, and although excessive noise exposure on active duty was conceded, there must be a nexus of auditory damage on active duty to relate current hearing loss to noise on active duty. The examiner concluded that there is objective evidence against a nexus in this case, objective evidence that the Veteran's current hearing loss was not caused by or a result of the veteran's military service, including noise exposure. The Board found this opinion to be inadequate in its June 2020 remand, as the examiner used the term "must" making the issue of in-service normal hearing the determinative basis for entitlement, which it is not. This opinion is therefore afforded little, if any, probative weight. The Veteran was afforded another VA examination in March 2021, where the examiner opined that the Veteran's right ear hearing loss was less likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner reasoned that a review of the claims file and service medical records revealed the Veteran to have the same sensitivity at both the entrance examination in 1972 and the separation examination in 1976. The examiner explained that the audiogram is the objective standard for noise injury and because the Veteran's hearing was normal at separation with no significant threshold shifts having occurred during active duty service, there is no evidence the Veteran's military noise exposure caused a permanent noise injury affecting hearing sensitivity. Therefore, the Veteran's current hearing loss is deemed less likely as not (less than 50/50 probability) caused by or a result of military noise exposure. The examiner concluded that when there is no objective evidence within the service treatment records (i.e. no entrance or separation exams) and it is common knowledge to rely on the Veteran's lay statement and noise exposure history and MOS as the primary means in rendering an opinion. However, when objective information such as in this case is available it is common practice to use this as the primary means in rendering a decision. In the Hensley vs. Brown case, hearing loss was noted at separation which is not the case for this Veteran. The examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). ("[A] medical opinion...must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). Furthermore, the medical examination reports contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, supra. Therefore, this medical opinion is of great probative value. There is no contrary opinion of record. Although the Veteran contends that his in-service exposure to grenades, rifles and machine guns caused his right ear hearing loss, the threshold shift on his separation examination was still in the normal hearing range for military service. The threshold for normal hearing is from zero to 20 decibels and the highest decibel shift on the Veteran's separation audiology evaluation was 15 decibels in his right ear, which is in the normal hearing range. See Hensley v. Brown, supra. Furthermore, the earliest compliant noted on the Veteran's post-treatment records was in 2011, more than 30 years after separation from service. Therefore, the Veteran's assertions are without merit. The Board acknowledges the statements of the Veteran as to the existence and etiology of his claimed right ear hearing loss and acknowledges that the Veteran is competent to give evidence about what he experienced. For example, he is competent to discuss the fact that he experiences symptoms of pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report his current symptoms, as a lay person he does not have the education, training, or experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran's statements are of low probative value. Thus, the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for right ear hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to a TDIU is denied. The Veteran contends that his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. See January 2018 Hearing Transcript (pg.4). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 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 or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran had a combined 40 percent rating for the following service-connected disabilities: arthritis of the lumbar spine (rated as 20 percent disabling from April 10, 2012); right knee arthritis and acl tear (rated as 10 percent disabling from April 10, 2012) and tinnitus (rated as 10 percent disabling from April 10, 2012). His combined disability rating is 40 percent, effective April 10, 2012. Therefore, the Veteran does not meet the schedular threshold criteria for consideration of a TDIU. Furthermore, during the January 2018 hearing, the presiding Veterans Law Judge noted that the Veteran did not meet the schedular requirement for a total disability rating as he was only rated as 10 percent disabling for tinnitus at the time. Although the Veteran is now currently rated for arthritis of the lumbar spine at 20 percent disabling and right knee arthritis and acl tear at 10 percent disabling, the Veteran still does not meet the schedular requirement for a total disability rating. Following a July 2018 Board remand, the RO requested in a September 2019 letter that the Veteran complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Information in Connection with Claim for Disability Benefit. The VA Form 21-8940 requests information regarding the Veteran's occupational and educational history, which is necessary to determine entitlement to TDIU. The Veteran did not return these forms to VA and did not respond to the September 2019 letter. It is the Veteran's responsibility to present and support a claim for benefits and to cooperate with VA. See 38 U.S.C. § 5107(a); Olson v. Principi, 3 Vet. App. 480, 483 (1992). Here, despite notice which specifically requested the necessary information and evidence, the Veteran has not done so. The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, the Veteran's educational and employment history is not clear from the record as the Veteran testified at the January 2018 Board hearing that he had a history of working at fast food restaurants and maintenance but did not provide specific dates of employment or length of employment or detail his educational history other than to indicate that he last worked four years ago at a fast food restaurant. However, the Veteran's Social Security Administration records indicate that he last worked in 2011. Therefore, the VA Form 21-8940 was necessary for the Board to accurately determine the Veteran's employment and educational history. (Continued on the next page) Therefore, the Veteran's claim for a TDIU is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.