Citation Nr: 1753079 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-11 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an effective date prior to May 16, 2011, for a 10 percent rating for service-connected bilateral hearing loss. 2. Entitlement to a rating in excess of 10 percent for bilateral hearing loss. 3. Entitlement to a rating in excess of 30 percent for anxiety disorder. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1960 to December 1964. The matter of bilateral hearing loss comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection and assigned the Veteran a 0 percent disability evaluation. The matter of anxiety comes before the Board on appeal from an April 2010 rating decision of the Nashville RO, which granted the Veteran's claim for service connection and assigned the Veteran a 30 percent disability evaluation. The matter of TDIU comes before the Board on appeal from a July 2012 rating decision of the Nashville RO, which denied the claim. The Board notes that the Veteran had initially appealed the denial of his claim for an increased rating for tinnitus, for which he was already receiving the maximum disability rating of 10 percent. In the October 2017 Informal Hearing Presentation (IHP), the Veteran's representative removed the claim for tinnitus from the issues on appeal. As such, the claim considered withdrawn and is no longer before the Board. The issues of increased rating for anxiety and TDIU 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 claim for service connection was granted in an April 2008 rating decision and assigned a 10 percent disability rating. That decision was not timely appealed and became final. 2. There was no claim to reopen the previously denied claim for service connection for bilateral hearing loss received before May 16, 2011, at which time the Veteran filed a claim for a total disability rating based on individual unemployability (TDIU), through which a new claim for an increased evaluation for bilateral hearing loss was inferred. 3. The Veteran's bilateral hearing loss has manifested as no more than Level II hearing in the right ear and Level IV hearing in the left ear. CONCLUSION OF LAW 1. The April 2008 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The criteria for an effective date prior to May 16, 2011, for a 10 percent rating for hearing loss have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2017). 3. The criteria for a rating in excess of 10 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.150, 3.321, 3.385, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veteran has not raised any procedural arguments regarding the notice or assistance provided in this case. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. After a final disallowance of a claim, the effective is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2). A rating decision becomes final if the veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302. The Veteran is currently service-connected for bilateral hearing loss and assigned a 10 percent disability rating effective May 16, 2011, the date of his claim for an increased rating was received. The Veteran asserts that he is entitled to an earlier effective date, though does not offer a specific rationale as to why. In July 2006, the RO denied the Veteran's claim for service connection for hearing loss. The Veteran timely appealed that decision, and the claim was granted in an April 2008 rating decision with a 10 percent disability rating. See 38 U.S.C.A. § 7105 (West 2014), 38 C.F.R. §§ 20.302, 20.1103 (2017). That decision was not timely appealed and became final. Id. On May 16, 2011, the Veteran filed a claim for a TDIU, through which a new claim for an increased evaluation for bilateral hearing loss was inferred. Because the April 2008 rating decision became final, the effective date for an increased rating in this case is the earliest date it is factually ascertainable based on all evidence of record that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In general, "date of receipt" means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r) (2016). In this case, no evidence pertaining to the Veteran's bilateral hearing loss was received within a year of the Veteran's claim. As such, the Board finds that May 16, 2011, is the earliest possible effective date for the grant of the 10 percent rating for bilateral hearing loss. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The weight of the evidence does not establish a factually ascertainably increase in the Veteran's bilateral hearing loss at any point prior to May 16, 2011. Consequently, the claim for an effective date earlier than May 16, 2011, must be denied. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). 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 (West 2014); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86 (2017), Diagnostic Code 6100, Tables VI, VIA, VII of VA's rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (2017). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran's service-connected bilateral hearing loss evaluation was increased to 10 percent disabling effective May 16, 2011, the date of the Veteran's claim for an increased rating. The increase was based on a May 2012 VA audiological evaluation, during which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 55 70 75 LEFT 25 15 70 65 65 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 in the left ear. The Veteran has submitted no other medical or lay evidence in regard to his claim for an increased disability evaluation during the appeal period. The application of the rating schedule to the audiometric findings does not establish entitlement to an increased disability rating for bilateral hearing loss in excess of 10 percent. The weight of the competent and probative lay and medical evidence of record is against an increased disability rating for bilateral hearing loss at any point during the pendency of this appeal. The Board notes that the Veteran's representative, in the October 2017 IHP, notes that the Veteran has not received a VA audiological examination since 2012, and as such, the case should be remanded to determine the current degree of severity of the Veteran's service-connected bilateral hearing loss. However, VA's duty to assist does not extend to provide a VA examination merely because a veteran has not undergone an examination for several years. Rather, a Veteran has a duty to provide additional lay or medical evidence showing a worsening condition; such evidence gives rise to VA's duty to provide a medical examination. However, without such evidence of record, the Board finds no VA examination is warranted. As such, the Veteran's claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An effective date prior to May 16, 2011, for a 10 percent rating for service-connected bilateral hearing loss is denied. A rating in excess of 10 percent for bilateral hearing loss is denied. REMAND Anxiety The Veteran's anxiety disorder is currently evaluated as 30 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Under Diagnostic Code 9411, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2017). The Veteran last received a VA examination to evaluate the current status of his anxiety disorder in January 2010. That examination diagnosed the Veteran with mild anxiety, which negatively impacts social and occupational functioning to a mild, but appreciable, degree. The examiner noted that the Veteran had begun to withdraw socially as a result of his hearing loss and attendant anxiety and embarrassment. As a result of this examination, the Veteran was awarded service connection for anxiety and assigned a 30 percent disability rating. Since this examination, the Veteran submitted treatment records from the Memphis, Tennessee, VAMC from 2006 to 2012. These records indicate that his anxiety condition may have worsened. Because the Veteran has submitted evidence indicating a worsening service-connected condition, the Board finds that a new VA medical examination is warranted. In this regard, the Board finds that for the purposes of evaluating the current degree of severity of the Veteran's condition, the January 2010 examination does not represent objective contemporaneous evidence upon which a decision can lie. VA's duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). As such, the Board finds that a new VA examination is warranted. TDIU The Board finds that the claim of entitlement to TDIU is inextricably intertwined with the claim for increased rating for anxiety disorder. All issues "inextricably intertwined" with the issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). The claim of entitlement to TDIU is "intertwined" with the anxiety claim because a decision on the claim may have an impact on the TDIU claim. Consequently, the claim of entitlement to TDIU must be remanded for contemporaneous adjudication. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file any outstanding VA or private medical evidence pertaining to the Veteran's treatment for his anxiety. If these records do not exist or cannot be obtained, the claims file should be documented accordingly. 38 C.F.R. § 3.159. 2. Schedule the Veteran for a new medical examination with an appropriate clinician. The purpose of the examination is to determine the current degree of severity of his service-connected anxiety disorder. The claims file must be made available to the VA examiner, and the examiner should review the file prior to the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. In particular the examiner should address the affects of the Veteran's anxiety disorder on his occupational and social impairment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claims should be readjudicated. The RO should then consider whether the Veteran is entitled to a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs