Citation Nr: 1629824 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 09-50 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an increased rating in excess of 60 percent for hypothyroidism status post Graves'disease and thyroid ablation. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 4. Entitlement to special monthly compensation (SMC) at the housebound rate. REPRESENTATION Appellant represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from February 1986 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and March 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In October 2013, the Board remanded the issue of service connection for bilateral hearing loss in order to obtain private treatment records from the physician who had provided a medical opinion in connection with the appeal, and for subsequent readjudication of the appeal. Pursuant to the remand directives, the Agency of Original Jurisdiction (AOJ) sent a November 2013 letter asking the Veteran to complete and return a VA Form 21-4142 (Authorization and Consent to Release Information). In the December 2013 response, the attorney wrote that there were no records to be obtained because the physician had not treated the Veteran and had only provided a medical opinion in connection with the appeal. In March 2016, the issue of service connection for bilateral hearing loss was readjudicated. In consideration of the foregoing, the Board finds that there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board finds that a claim for SMC payable at the housebound rate has been raised in this case. See 38 U.S.C.A. § 1114(s) (West 1114). While the issue has not been addressed or adjudicated by the AOJ, the United States Court of Appeals for Veterans Claims (Court) has held that a request for an increase in benefits should be inferred as a claim for SMC regardless of whether it has been raised by a veteran or previously adjudicated. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). Precedential case law directs the Board to consider awarding SMC at the housebound rate if a veteran meets the requisite schedular or extraschedular criteria. See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011) (holding that whenever a veteran has a total disability rating, schedular or extraschedular, and is subsequently awarded service connection for any additional disability or disabilities, VA has a duty to assess all of the claimant's disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to SMC under subsection 1114(s)). Accordingly, the Board finds that it has authority to consider the rating issue of entitlement to SMC at the housebound rate, as noted on the first page of this decision. FINDINGS OF FACT 1. The Veteran was exposed to loud noise and sustained acoustic trauma during service. 2. The Veteran does not have a bilateral hearing loss disability for VA compensation purposes. 3. Throughout the rating period from December 12, 2007, hypothyroidism was manifested by fatigability, constipation, mental sluggishness, muscular weakness, weight gain, cold intolerance, and bradycardia and was treated with continuous medication. 4. As a 100 percent ("total") schedular rating for hypothyroidism will be awarded for the entire rating period, leaving no rating period where the schedular rating is "less than total," the issue of entitlement to a TDIU is rendered moot for the entire rating period. 5. For the rating period from December 12, 2007, the service-connected disabilities are hypothyroidism, to be rated at 100 percent from December 12, 2007; lumbar spine degenerative joint disease with dextroscoliosis, rated at 20 percent from March 1, 2006; temporomandibular joint (TMJ) syndrome, rated at 10 percent from March 1, 2006; right tibia/fibula fracture residuals, rated at 0 percent from March 1, 2006; uterine fibroids, rated at 0 percent from March 1, 2006; and obstructive sleep apnea, rated at 50 percent from October 24, 2008 to January 14, 2013, and rated at 0 percent thereafter. 6. From December 12, 2007 to October 24, 2008, and from January 14, 2013, forward, the Veteran will be in receipt of a 100 percent rating for hypothyroidism, and the combined disability rating for the other service-connected disabilities is 30 percent. 7. From October 24, 2008 to January 14, 2013, the Veteran will be in receipt of a 100 percent rating for hypothyroidism, and the combined disability rating for the other service-connected disabilities is 60 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2016). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for an increased rating of 100 percent for hypothyroidism are met for the entire rating period from December 12, 2007, forward. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.119, Diagnostic Code (DC) 7903 (2016). 3. The question of whether the Veteran is entitled to an award of TDIU is rendered moot by the grant of a 100 percent schedular ("total") rating for hypothyroidism, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 4.14, 4.16 (2016). 4. The criteria for entitlement to SMC at the housebound rate have been met from October 24, 2008 to January 14, 2013. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Board notes that a claim for a TDIU is, in essence, a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Norris v. West, 12 Vet. App. 413, 420 (1999). A TDIU claim is an alternative way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See, e.g., Parker v. Brown, 7 Vet. App. 116, 118 (1994). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The issue of entitlement to an increased rating in excess of 60 percent for hypothyroidism from December 12, 2007, forward, has been considered with respect to VA's duties to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Given the favorable outcome of the increased rating appeal, which is a full grant of benefits sought (i.e., a 100 percent ("total") schedular disability rating for hypothyroidism) for the entire rating period, the appeal has been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist with respect to that issue. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Additionally, as there remains no question of law or fact to decide regarding TDIU because there remains no rating "less than total" for TDIU eligibility as required by 38 C.F.R. § 4.16, the issue of entitlement to a TDIU for any period will be dismissed as moot; therefore, there is no need to discuss how VA fulfilled the duties to notify and assist with respect to that issue. In the June 2008 notice letter sent prior to the initial denial of the service connection claim for bilateral hearing loss, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the service connection appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. The RO provided the Veteran with a VA fee-basis audiology examination in April 2013. The examination report includes all relevant findings and medical opinions needed to evaluate fairly the appeal. The VA fee-basis examiner considered an accurate history of the claimed bilateral hearing loss as provided through interview of the Veteran and review of the record, as well as the Veteran's subjective complaints as it related to the current symptomatology and its effects on daily life and performed a thorough examination; therefore, the VA fee-basis examiner had adequate facts and data regarding the history and condition of bilateral hearing loss when providing the medical opinion. For these reasons, the Board finds that the April 2013 VA fee-basis audiology examination report is adequate, and there is no need for further examination. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran does not have sensorineural hearing loss (i.e., an organic disease of the nervous system) or a current bilateral hearing loss disability as defined by VA regulatory criteria; thus, there is no "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between the current hearing loss and a disability or injury suffered during military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). Service Connection Analysis for Bilateral Hearing Loss The Veteran contends that he currently suffers from bilateral hearing loss due to loud noise exposure (i.e., acoustic trauma) sustained during service. He seeks service connection on this basis. After review of the lay and medical evidence of record, the Board finds that the Veteran sustained acoustic trauma (i.e., sustained a bilateral ear injury) during active service. Service hearing conservation data forms note steady noise exposure and auditory threshold shifts in both ears during service. The Board finds that the Veteran has never had, and does not currently have, a left or right hearing loss "disability" as defined by the VA regulatory criteria at 38 C.F.R. § 3.385. As noted above, the service hearing conservation data forms note an auditory threshold shift during service; however, no hearing loss disability, as defined by VA regulatory criteria, was demonstrated for the right or left ear during service. At the April 2013 VA fee-basis audiology examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 15 25 25 LEFT 25 10 20 20 25 The speech recognition score with the Maryland CNC Test was 96 percent for the right ear and 100 percent for the left ear. There is no indication that the audiometric results are unreliable or otherwise inadequate. Additionally, the Veteran has not alleged, and the evidence does not otherwise indicate, that there has been a material change in hearing loss since the April 2013 VA fee-basis audiology examination. Thus, the auditory threshold for all frequency levels for the right ear (i.e., the 500, 1000, 2000, and 3000 Hz frequency levels), as well as all frequency levels for the left ear (i.e., 500, 1000, 2000, 3000, and 4000 Hz frequency levels), is less than 26 decibels, and the speech recognition score is not less than 94 percent bilaterally. The April 2013 VA fee-basis examiner noted that no hearing loss was present. The evidence of record does not show a right or left hearing loss disability as defined by 38 C.F.R. § 3.385. In the April 2013 letter from the private physician submitted in support of the appeal, the physician noted that there was a significant threshold shift between 1985 and 2006 during service; however, the private physician neither stated that the Veteran had a current bilateral hearing loss disability nor reported current audiometric findings that showed a current bilateral hearing loss disability as defined by VA regulatory criteria. For these reasons, a hearing loss disability for the left or right ear that meets the criteria at 38 C.F.R. § 3.385 is not demonstrated by the evidence. Although the Veteran has asserted that she believes she has a current bilateral hearing loss disability that was caused by noise exposure during service, she does not have the requisite specialized expertise in audiology to diagnose a hearing loss disability that meets the § 3.385 criteria. A hearing loss disability is diagnosed primarily on objective clinical findings, audiometric testing, and controlled speech recognition testing; thus, while the Veteran is competent under the facts of this case to relate symptoms of hearing loss that she experienced at any time, she is not competent to diagnose a hearing loss disability because such diagnosis requires specific medical knowledge and training in audiology and must be supported by objective clinical findings and audiometric testing, which the Veteran cannot administer to herself. The weight of the evidence shows no bilateral hearing loss disability as defined by VA regulatory criteria at § 3.385. The Veteran has not alleged, and the evidence does not otherwise indicate, that there has been a material change in the severity of claimed hearing loss since the April 2013 VA fee-basis audiology examination. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). Because a bilateral hearing loss disability as defined by the VA regulatory criteria at 38 C.F.R. § 3.385 is not demonstrated in this case, service connection is not warranted for bilateral hearing loss. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Disability Rating Legal Criteria Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Rating Analysis for Hypothyroidism For the entire increased rating period from December 12, 2007, the service-connected hypothyroidism has been rated at 60 percent under 38 C.F.R. § 4.119, DC 7903. Under DC 7903, a 10 percent disability rating is warranted for hypothyroidism manifested by fatigability or continuous medication required for control. A 30 percent disability rating is warranted for hypothyroidism with fatigability, constipation, and mental sluggishness. A 60 percent disability rating is warranted for hypothyroidism with muscular weakness, mental disturbance, and weight gain. A 100 percent disability rating is warranted for hypothyroidism with cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 heart beats per minute), and sleepiness. 38 C.F.R. § 4.119, DC 7903. After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the hypothyroidism disability picture more closely approximates the criteria for a 100 percent rating under DC 7903 for the entire rating period. Throughout the rating period, the evidence shows that hypothyroidism was manifested by fatigability, constipation, mental sluggishness, muscular weakness, weight gain, cold intolerance, and bradycardia and was treated with continuous medication. See January 2013 VA examination report. Although hypothyroidism was not manifested by the 100 percent rating criteria symptoms of cardiovascular involvement, mental disturbance, or sleepiness during the rating period, the symptoms of cold intolerance, muscular weakness, and bradycardia, which are also contemplated in the 100 percent rating criteria, were demonstrated during the rating period. See 38 C.F.R. § 4.21 (2016) (noting that it is not expected that all cases will show all the findings specified). In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 100 percent rating for hypothyroidism for the entire rating period (i.e., from December 12, 2007) are met. 38 C.F.R. §§ 4.3, 4.7. Because the Veteran is in receipt of the maximum schedular rating of 100 percent under DC 7903 and all of the hypothyroidism symptoms are explicitly contemplated in the schedular rating criteria under DC 7903, there is no additional impairment possible that is not recognized by the schedular rating criteria. As there is no higher schedular or extraschedular rating legally possible, the extraschedular rating provisions at 38 C.F.R. § 3.321(b)(1) (2016), which are only for application when the schedular rating is less than total (100 percent), are not potentially applicable in this case. TDIU Legal Criteria A TDIU may be assigned "where the schedular rating is less than total" (emphasis added) 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. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1) (2016). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340(a)(2) (2016). TDIU Analysis Because a 100 percent schedular rating for hypothyroidism for the entire increased rating period from December 12, 2007, forward, is now granted, and the 100 percent schedular rating throughout the rating period contemplates the loss of working time from exacerbations or illness proportionate to the severity of hypothyroidism, there remains no rating period where the schedular rating is "less than total," as required for a TDIU. See 38 C.F.R. § 4.16(a). The Veteran has not contended, and the evidence does not otherwise show, that any service-connected disability other than hypothyroidism, either alone or in combination with the other service-connected disabilities, is of such a severity so as to preclude substantially gainful employment. Rather, for the entire TDIU rating period from December 12, 2007, the Veteran has been employed full-time. For this reason, the issue of entitlement to a TDIU at any time during the TDIU rating period (i.e., from December 12, 2007, forward) is now rendered moot. The question of whether the Veteran is entitled to an award of TDIU is rendered moot by the grant of a 100 percent schedular ("total") rating for hypothyroidism, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. The contention during the course of this appeal was that the service-connected hypothyroidism rendered the Veteran unemployable during the period from February 2006 to September 2006; however, that period is outside of the TDIU rating period on appeal. 38 C.F.R. § 4.1. In the September 2007 rating decision, the RO granted service connection for Graves disease with a 10 percent rating effective from March 1, 2006 (i.e., the day after service separation). See August 2008 rating decision (recharacterizing the service-connected disability as hypothyroidism status post Graves' disease and thyroid ablation). In September 2007, the Veteran was notified of that rating decision and provided notice of procedural and appellate rights. Because the Veteran did not appeal the September 2007 rating decision within one year of that notice, and no new and material evidence was received within one year of that notice, the September 2007 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. The earliest communication received after the September 2007 rating decision that could be construed as a new formal or informal increased rating claim for hypothyroidism was the VA Form 21-4138 received on December 12, 2007. The Court has held that the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In order to obtain an increased disability rating earlier than the date of the claim, the evidence must show that the increase in disability occurred within the one year period prior to the date of claim. If the evidence showed that the increase occurred earlier than one year prior to the date of the claim, then, under the analysis in Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010), the effective date is no earlier than the date of the claim. The Federal Circuit explained that the legislative intent in enacting 38 U.S.C.A. § 5110(b) was to allow for a grace period of up to one year for the Veteran to file the claim once he or she was aware of the increase in disability. Id. The Federal Circuit held that the "consistent with the plain language of the statute and this legislative history, the only reasonable construction of 38 U.S.C.A. § 5110(b)(2) is that a veteran's claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim." Because the Veteran filed the December 2007 increased rating claim more than one year after the reported period of unemployment from February 2006 to September 2006 had ended, the TDIU rating period on appeal can begin no earlier than the date of the increased rating claim (i.e., December 12, 2007). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is part of an initial or increased rating appeal). The Board additionally notes that, for the portion of the rating period from February 2006 to March 1, 2006, the Veteran was on active duty; therefore, no disability compensation benefits would be available for that portion of the rating period even if it was part of the TDIU rating period. For these reasons, the Board finds that the issue of entitlement to a TDIU must be dismissed as moot. SMC at the Housebound Rate Analysis SMC at the housebound rate is warranted if a veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran's service-connected disability or disabilities, is permanently housebound. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); C.F.R. § 3.350(i). For the rating period from December 12, 2007, the service-connected disabilities are hypothyroidism, now rated at 100 percent from December 12, 2007; lumbar spine degenerative joint disease with dextroscoliosis, rated at 20 percent from March 1, 2006; temporomandibular joint (TMJ) syndrome, rated at 10 percent from March 1, 2006; right tibia/fibula fracture residuals, rated at 0 percent from March 1, 2006; uterine fibroids, rated at 0 percent from March 1, 2006; and obstructive sleep apnea, rated at 50 percent from October 24, 2008 to January 14, 2013, and rated at 0 percent thereafter. From December 12, 2007 to October 24, 2008, and from January 14, 2013, forward, the combined disability rating for the service-connected disabilities other than hypothyroidism is 30 percent. From October 24, 2008 to January 14, 2013, the combined disability rating for the service-connected disabilities other than hypothyroidism is 60 percent. After review of the record, the Board finds that the criteria for SMC payable at the housebound rate have been met for the period from October 24, 2008 to January 14, 2013. As explained above, hypothyroidism is now rated at 100 percent effective from December 12, 2007, and additional service-connected disabilities are independently ratable at 60 percent from October 24, 2008 to January 14, 2013; therefore, because the Veteran has a service-connected disability rated as total (hypothyroidism), and has additional service-connected disabilities independently ratable at 60 percent, SMC payable at the housebound rate is warranted from October 24, 2008 to January 14, 2013. 38 U.S.C.A § 1114(s); 38 C.F.R. § 3.350(i). ORDER Service connection for bilateral hearing loss is denied. An increased rating of 100 percent for hypothyroidism for the entire rating period from December 12, 2007 is granted. The appeal on the issue of a TDIU, having been rendered moot, is dismissed. SMC at the housebound rate from October 24, 2008 to January 14, 2013 is granted. ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs