TINNITUS

M. H. HAWLEY · 2021 · Case ID: 21003765

MIXED

Summary

The veteran, who served from November 1990 to July 1991, appeals the denial of service connection for tinnitus and the denial of entitlement to a Total Disability based on Individual Unemployability (TDIU) prior to September 8, 2017. The Board found that the Veteran's tinnitus claim was not service-connected. Multiple VA examinations were conducted for tinnitus, with the August 2020 report being assigned significant probative weight. This examiner concluded, with supporting medical references, that the Veteran's tinnitus was more likely than not unrelated to service, citing the absence of hearing loss and the nature of tinnitus etiology. The Board acknowledged the Veteran's competence to report symptoms and exposure but found the evidence preponderated against a service connection for tinnitus. Regarding TDIU, the Board granted entitlement from September 8, 2017. The Veteran has a service-connected psychiatric condition rated at 70% from that date, meeting the schedular requirements for the Board to assign TDIU. The Veteran's assertion of unemployability due to this condition was partially supported by Social Security disability findings and a VA DBQ noting difficulty adapting to work settings. Although a prior VA examiner opined the Veteran could perform sedentary work, the Board found it at least as likely as not that his psychiatric condition, given his education and work history, would preclude substantially gainful employment. The claim for TDIU prior to September 8, 2017, was remanded for extraschedular consideration, as the Veteran did not meet the schedular requirements for that earlier period but presented evidence suggesting unemployability.

Rationale

August 2020 VA examiner opinion assigned significant probative weight; Examiner cited absence of hearing loss and tinnitus etiology; Evidence preponderated against service connection

Special Benefit

TDIU

Docket No.

10-01 202

Full Decision Text

Citation Nr: 21003765
Decision Date: 01/22/21 Archive Date: 01/22/21

DOCKET NO. 10-01 202
DATE: January 22, 2021

ORDER

Entitlement to service connection for tinnitus is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) from September 8, 2017 is granted.

REMANDED

Entitlement to a TDIU prior to September 8, 2017 is remanded.

FINDINGS OF FACT

1. It is more likely than not that the Veteran’s tinnitus is not due to or aggravated by his active-duty service.

2. It is at least as likely as not that the Veteran’s service-connected psychiatric condition precluded him from obtaining and maintaining substantially gainful employment from September 8, 2017.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303.

2. The criteria for entitlement to a TDIU from September 8, 2017 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1990 to July 1991, with prior periods of active and inactive duty for training. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of January 2008 and March 2012 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

The undersigned Veterans Law Judge (VLJ) conducted a hearing on the issue of service connection for tinnitus, among other conditions, in August 2011. A separate VLJ conducted a hearing addressing the issue of entitlement to a TDIU in January 2015. These claims have subsequently been merged in this appeal. As this second VLJ is no longer available to adjudicate the Veteran’s claim, the Veteran was offered, but did not accept, the opportunity for a new hearing. See November 2020 Correspondence; see also 38 C.F.R. § 19.3(b) (providing for the reassignment of proceedings where a VLJ is unavailable). Transcripts of both hearings are of record.

The Veteran’s claims were remanded for further development, including an additional VA examination, in June 2016. See June 2016 Board Decision. After reviewing the evidence of record, the Board now finds that the RO has substantially fulfilled its remand directives and will therefore adjudicate the Veteran’s claims on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions).

1. Entitlement to service connection for tinnitus.

Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). 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).

The Veteran asserts that he experiences tinnitus as a result of noise exposure incurred during his active-duty service. See August 2011 Transcript at 16-18. The Veteran has undergone multiple VA examinations on this issue. However, the Board has previously found several of those examinations to be inadequate because they relied too heavily on the absence of treatment records and did not support their conclusions with references to applicable medical treatises. See June 2016 Board Decision at 3-4.

Accordingly, the Veteran’s claims file was reviewed in December 2016 and again in August 2020. These VA examiners each concluded that it is more likely than not that the Veteran’s tinnitus is not due to or aggravated by his active-duty service. See December 2016 VA Examination Report at 3-4; see also August 2020 VA Examination Report at 1-2.

While the December 2016 VA examination report again relies too heavily on the absence of treatment records, the
examinations to be inadequate because they relied too heavily on the absence of treatment records and did not support their conclusions with references to applicable medical treatises. See June 2016 Board Decision at 3-4.

While the December 2016 VA examination report again relies too heavily on the absence of treatment records, the August 2020 VA examiner supported his opinion with applicable medical references:

[The] etiology of... tinnitus is not capable of lay determination... as tinnitus is known to be a symptom associated with many conditions outside of noise exposure. When caused by noise exposure, tinnitus most commonly accompanies hearing loss and/or significant [hearing] threshold shifts, and [the Veteran] does not present with either hearing loss or significant threshold shifts between audiograms most proximal to documented dates of entry and separation. This is relevant because in 2005 the Institute of Medicine found that the most profound auditory effects of noise exposure occur immediately following exposure.

See August 2020 VA Examination Report at 2 (emphasis added); see also December 2019 Rating Codesheet (providing that the Veteran is not service-connected for hearing loss); see also July 2009 VA Examination Report at 1 (noting that the Veteran’s non-service-connected noise exposure includes five years’ work as a welder and playing the drums “[for] most of his life”).

The Veteran is competent to report symptoms of tinnitus and to assert that he was exposed to noise during his active-duty service. The Board therefore finds that the first and second Shedden factors have been satisfied. See Shedden, 381 F.3d at 1167. However, neither the Veteran nor the Board is competent to opine as to the etiology of his tinnitus because such a determination requires medical expertise. “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).

Because the August 2020 VA examiner explained the reasoning and medical references supporting his conclusion, the Board assigns his opinion as to the etiology of the Veteran’s tinnitus significant probative weight. The third Shedden factor is therefore not met and the assignment of service connection is not warranted. 38 C.F.R. § 3.303. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107.

2. Entitlement to a TDIU from September 8, 2017.

Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. “Substantially gainful employment,” in this context, is that which is more than marginal in nature. 38 C.F.R. § 4.16(a).

For the Board to assign a TDIU in the first instance, the Veteran must have a single service-connected disability rated at least 60 percent disabling, or else a combined disability rating of 70 percent with at least one disability of 40 percent or greater. See 38 C.F.R. § 4.16(a).

The record reflects that the Veteran is service-connected for a psychiatric condition, which is rated as 50 percent disabling from January 7, 2005 and as 70 percent disabling from September 8, 2017. The Board may therefore assign a TDIU in the first instance only from this latter date. See 38 C.F.R. § 4.16(a); see also December 2019 Rating Codesheet at 1 (providing that the Veteran is not service-connected for any other conditions).

The Veteran has asserted that his psychiatric condition precludes him from obtaining and maintaining substantially gainful employment. See January 2015 Transcript at 3; see also June 2015 VA Form 21-8940 at 2 (asserting that “I had anger outbursts and problems getting along with coworkers and supervisors... which makes it impossible for me to
70 percent disabling from September 8, 2017. The Board may therefore assign a TDIU in the first instance only from this latter date. See 38 C.F.R. § 4.16(a); see also December 2019 Rating Codesheet at 1 (providing that the Veteran is not service-connected for any other conditions).

The Veteran has asserted that his psychiatric condition precludes him from obtaining and maintaining substantially gainful employment. See January 2015 Transcript at 3; see also June 2015 VA Form 21-8940 at 2 (asserting that “I had anger outbursts and problems getting along with coworkers and supervisors... which makes it impossible for me to hold a job”). The record reflects that the Veteran was last employed in December 2005, has previously been employed as a driver, laborer, and welder, and has a high school degree with additional technical college training. See id. at 1-2; see also August 2015 VA Examination Report at 3.

The evidence of record partially supports the Veteran’s assertion. See June 2015 Social Security Records (providing that the Veteran has been found disabled under the Social Security Act due to his psychiatric condition from December 12, 2006); see also March 2019 Disability Benefits Questionnaire (DBQ) at 7 (noting “difficulty in adapting to stressful circumstances, including work or a work-like setting” among symptoms).

The Board notes that an August 2015 VA examiner opined that “the Veteran’s PTSD should not prevent [him] from performing... sedentary or desk types of work.” See August 2015 VA Examination Report at 6. However, given the technical and incomplete nature of the Veteran’s college education and his prior work history, the Board considers it at least as likely as not that his service-connected psychiatric condition would preclude him from successfully obtaining and maintaining such employment. 38 U.S.C. § 5107. The assignment of a TDIU from September 8, 2017 is therefore warranted. 38 C.F.R. § 4.16(a).

REASONS FOR REMAND

1. Entitlement to a TDIU prior to September 8, 2017 is remanded.

As noted above, the Board may only assign a TDIU in the first instance where the Veteran meets certain schedular requirements. See 38 C.F.R. § 4.16(a).

However, the applicable regulations provide that the Board “should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards[.]” See 38 C.F.R. § 4.16(b).

As discussed above, the Veteran does not meet the schedular requirements for a TDIU prior to September 8, 2017. However, the evidence of record supports the inference that his service-connected psychiatric condition may have precluded him from obtaining and maintaining substantially gainful employment prior to that date as well.

This matter is therefore REMANDED for the following action:

Provide the Veteran’s claims file, including a copy of this remand, to the Director of the Compensation and Pension Service for extraschedular consideration.

M. H. HAWLEY

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board D. Blore, 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.

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