Citation Nr: 1752842 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-26 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a degenerative disc disease of the lumbar spine. 2. Entitlement to an effective date prior to July 29, 2015 for dependents' educational assistance. 3. Entitlement to an effective date prior to July 29, 2015, for a total disability rating based on individual unemployability (TDIU). 4. Entitlement to an effective date prior to March 31, 2010 for service connection for an acquired psychiatric disorder. 5. Entitlement to an initial disability rating in excess of 30 percent prior to July 29, 2015, and in excess of 70 percent prior to May 26, 2016 for an acquired psychiatric disorder. 6. Entitlement to a compensable evaluation for bilateral hearing loss prior to November 23, 2012, and an evaluation in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from March 1975 to March 1978. These matters come to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. An August 17, 2010 rating decision continued a noncompensable evaluation for bilateral hearing loss and denied a claim to reopen for service connection for PTSD. That decision additionally denied service connection for schizophrenia. An October 2012 rating decision denied service connection for a lumbar spine disorder. The Veteran testified at a February 2013 hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Veteran requested a new hearing in May 2013, but in a May 2017 correspondence, stated that he wished to cancel this request. 38 C.F.R. § 20.704 (2017). In January 2015 remand, the Board reopened the Veteran's claim for service connection for PTSD. The Board further noted that a review of the record demonstrated diagnoses for other psychiatric disorders. The Board thus expanded the Veteran's claim to include entitlement to PTSD and entitlement to service connection for an acquired psychiatric disorder other than PTSD. Since that time, and following findings by a July 2015 VA examiner that, while the Veteran did not meet the diagnostic criteria for PTSD, the Veteran had other mental disorder diagnoses which could not be differentiated, in January 2016 the RO granted service connection for other specified trauma and stressors related disorder. While the Veteran is shown to disagree with the assignment of ratings and effective date for that disorder, at no time is the Veteran shown to wish to pursue his PTSD claim. Given the above, the Board finds the claim for PTSD moot. As noted above, in January 2016, the RO granted service connection for other specified trauma and stressors related disorder, schizoaffective disorder, with an evaluation of 30 percent from March 31, 2010 and a 70 percent evaluation from July 29, 2015. Most recently, in August 2016, the RO granted a 100 percent disability rating for schizoaffective disorder from May 26, 2016. The RO also granted TDIU from July 29, 2015 and eligibility to dependents' educational assistance from July 29, 2015. The Veteran has submitted an notice of disagreement concerning the effective dates and ratings assigned in the January and August 2016 rating decisions, however, a statement of the case has not been issued. This will be discussed in the Remand section, below. The issue of entitlement to an annual clothing allowance for the 2017 calendar year has been perfected but not yet certified to the Board. The Board's review of the claims file reveals that the AOJ is still taking action on these issues. As such, the Board will not accept jurisdiction over that issue at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. The issue of entitlement to a temporary evaluation for a psychiatric disorder between August 22, 2011 and October 19, 2011 for hospital treatment in excess of 21 days for a service-connected disability in a September 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to an effective date prior to July 29, 2015 for dependents' educational assistance, entitlement to an effective date prior to July 29, 2015, for a total disability rating based on individual unemployability, entitlement to an effective date prior to March 31, 2010 for service connection for other specified trauma and stressors related disorder, schizoaffective disorder and entitlement to an initial disability rating in excess of 30 percent prior to July 29, 2015, and in excess of 70 percent prior to May 26, 2016 for other specified trauma and stressors related disorder, schizoaffective disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine is related to service. 2. Prior to November 23, 2012, bilateral hearing loss is manifested by no worse than Level I hearing in the right ear and Level I hearing in the left ear. 3. From November 23, 2012, bilateral hearing loss is manifested by no worse than Level V hearing in the right ear and Level VII hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria to establish service connection degenerative disc disease of the lumbar spine has been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. Prior to November 23, 2012, the criteria for a compensable rating for the Veteran's bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.14, 4.85, 4.86, 4.87, Diagnostic Codes 6100 (2017). 3. From November 23, 2012, the criteria for a rating in excess of 30 percent for the Veteran's bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.14, 4.85, 4.86, 4.87, Diagnostic Codes 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.§ 1154 (a); 38 C.F.R. § 3.303 (a). The Veteran contends that he has a current back injury due to in-service parachute jumps. The Veteran's DD 214 demonstrates that the Veteran earned his parachute badge. Service treatment records include a May 1976 report that the Veteran injured his back on a parachute jump. X-rays were negative for a fracture, the Veteran was put on light duty for 72 hours. A January 1978 report of low back spasms. The Veteran's February 1978 report of medical examination for separation noted a normal back examination. An October 2012 VA examination includes the Veteran's report that he would self treat for back pain after leaving the military. The VA examiner stated that the Veteran reported that chronic back pain didn't really start until fifteen years prior and that there was a lack of documentation for continuity of care. The examiner found radiographic evidence of lumbar spondylosis with disc bulging which was found to be unrelated to parachuting or military service. It was found that aging and the wear generated from it is likely cause of these findings and that there was no finding that lumbar spine associated with military service. Of note, in his November 2012 notice of disagreement, the Veteran opposed the VA examiner's findings noting that the examination lasted only about five minutes and that he did not in fact report that he had back pain for only fifteen years. In a June 2013 letter from Dr. K.C., Dr. K.C. stated that the Veteran had evidence of lumbar degenerative disc disease and that after looking at the Veteran's records it certainly looked like being a paratrooper caused some degeneration. He stated that jumping out of planes would lead to degeneration of the lumbar spine. In a November 2016 medical opinion, a VA examiner found that it was less likely than not that the Veteran's spine disability was related to service. The examiner stated that the Veteran's in-service injury was acute in nature, noting that he was able to sustain jump status later and that separation physical did not reveal a chronic residual condition was not shown. The examiner cited a 1977 study noting that parachutists did not have a higher prevalence of osteoarthritis versus other populations. In a September 2017 report from Dr. A.A., Dr. A.A. noted the findings of back symptoms in service as well as the findings of the Veteran's VA examiners and his lay statements of continuous back pain. Dr. A.A. stated that it was more than likely that the Veteran's degenerative disc disease is a result of his in-service parachute jumps. Dr. A.A. noted that the Veteran never underwent MRI testing during service and that there was no way to know what the Veteran was at risk to develop chronically. Dr. A.A. noted that literature, to include an attached finding on military parachuting that there was evidence of significant stress from parachuting on the human spine. Given the findings of an in-service injury, the circumstances of the Veteran's service, and credible account of continuous back symptoms since service, and considering the findings of Dr. K.C. and Dr. A.A., the Board finds that the evidence of record is at least in equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that the current degenerative disc disease of the lumbar spine is etiologically related to his active military service. See 38 C.F.R. § 3.102. Accordingly, service connection for low back disability is warranted. Increased Rating for Hearing Loss A noncompensable disability rating was continued in an August 2010 rating decision. The Veteran appealed that rating decision and contends a higher disability is warranted. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. "Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings." Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citation omitted). VA accordingly concentrates on the evidence that establishes the state of the veteran's disability in the period one year before the veteran files his claim through the date VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Assignments of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII. Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. 38 C.F.R. § 4.85 (a). Numeric designations (I through XI) are assigned by application of Table VI, in which the percentage of discrimination is intersected with the puretone decibel loss. 38 C.F.R. § 4.85 , Table VI. The results are then applied to Table VII, for a percentage rating. Id. "Puretone threshold average," as used in Tables VI and VIA, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA. 38 C.F.R. § 4.85 (d). Under 38 C.F.R. § 4.86, evaluation of veterans with certain patterns of exceptional hearing impairment is contemplated. In the case where puretone thresholds are 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz), either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86 (a). In addition, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied. 38 C.F.R. § 4.86 (b). The Veteran was afforded a VA examination in May 2010. Audiometric testing demonstrated the following puretone thresholds: HERTZ 1000 2000 3000 4000 RIGHT 15 30 70 70 LEFT 15 70 65 70 During his examination the Veteran reported that he had trouble understanding speech clearly without his hearing aids. Speech recognition was 98 percent in the right ear and 94 percent in the left ear. These findings translate to Level I hearing impairment in the right ear and Level I hearing in the left ear under Table VI. Level I hearing in one ear and Level I hearing in the other warrants a noncompensable evaluation under the applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran was afforded a VA examination in November 2012. Audiometric testing demonstrated the following puretone thresholds: HERTZ 1000 2000 3000 4000 RIGHT 45 45 80 80 LEFT 45 80 80 85 Speech recognition was 70 percent in the right ear and 56 percent in the left ear. These findings translate to Level V hearing impairment in the right ear and Level V hearing in the left ear under Table VI. Level V hearing in one ear and Level V hearing in the other warrants a 20 percent evaluation under the applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran was afforded a VA examination in August 2016. Audiometric testing demonstrated the following puretone thresholds: HERTZ 1000 2000 3000 4000 RIGHT 30 50 80 80 LEFT 30 80 75 75 Speech recognition was 74 percent in the right ear and 56 percent in the left ear. These findings translate to Level V hearing impairment under Table VII. Level V hearing in one ear and Level VII hearing in the other warrants a 30 percent evaluation under the applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100. Based on the results of all testing prior to November 23, 2012, and applying the stated rating criteria to the results, at worst, Level I hearing and Level I hearing in the right ear is shown. Such designations equate to a noncompensable (zero percent) evaluation. The VA examination findings are consistent with the other evidence of record and are considered to adequately represent the Veteran's present level of disability. Therefore, a zero percent schedular disability rating is applicable under the provisions of 38 C.F.R. § 4.85, Table VII. Thereafter, in November 2012, Level V and Level V hearing is shown, this equates to a 20 percent disability rating under the provisions of 38 C.F.R. § 4.85, Table VII. While the assigned 30 percent rating appears to be in error, the Board will not interrupt the assignment of the higher rating. From August 2016, Level V hearing in one ear and Level VII hearing in the other warrants a 30 percent evaluation under the applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has considered the Veteran's statements and is aware of his complaints about not being able to hear well. It must, however, be reiterated that disability ratings for hearing impairment are derived by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). There was no indication that the audiological evaluation produced test results which were invalid. Additionally, the provisions of 38 C.F.R. § 4.86 pertaining to exceptional patterns of hearing loss are not for application as the requirements have not been met. As such, the preponderance of the evidence is against the claims for higher schedular ratings for bilateral hearing loss; there is no doubt to be resolved. A compensable rating prior to November 23, 2012, and a rating in excess of 30 percent is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. Entitlement to a compensable rating for bilateral hearing loss prior to November 23, 2012 is denied. Entitlement to an evaluation in excess of 30 percent from November 23, 2012 for bilateral hearing loss is denied. REMAND Service connection for an acquired psychiatric disability was granted with a disability rating of 30 percent from March 31, 2010 to July 28, 2015 and 70 percent thereafter in January 2016. Thereafter, in an August 2016 rating, the RO granted a higher 100 percent disability rating effective May 26, 2016, TDIU and basic eligibility for dependent's education assistance was granted effective July 2015 in that rating decision. After these rating decisions were issued, the Veteran submitted a notice of disagreement in February 2017. However, a Statement of the Case (SOC) has not been issued and, therefore, remand is required to provide the Veteran with an SOC addressing the claims. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The statement of the case must be issued unless the Veteran's claims are resolved, such as by a complete grant of the benefits sought, or withdrawal of the notice of disagreement. Accordingly, the case is REMANDED for the following action: Issue an SOC addressing the Veteran's claims of entitlement to an effective date prior to July 29, 2015 for dependents' educational assistance, entitlement to an effective date prior to July 29, 2015, for a total disability rating based on individual unemployability, entitlement to an effective date prior to March 31, 2010 for service connection for an acquired psychiatric disorder and entitlement to an initial disability rating in excess of 30 percent prior to July 29, 2015, and in excess of 70 percent prior to May 26, 2016. If the Veteran perfects an appeal, return the claims to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs