Citation Nr: 1804085 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 15-03 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). 3. Entitlement to a compensable rating for bilateral hearing loss. 4. Entitlement to an effective date earlier than August 29, 2008 for service connection for left ear hearing loss and December 24, 2012 for right ear hearing loss. WITNESS AT HEARING ON APPEAL Veteran and Son ATTORNEY FOR THE BOARD S. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the April 2013, July 2013, and April 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in October 2017 and transcript of the hearing is of record. Since the Statement of the Case (SOC) was issued in December 2014, there has been evidence submitted pertaining to the Veteran's PTSD claim. Ordinarily, the Board may not consider additional evidence not previously reviewed by the RO, unless a waiver of initial RO review is obtained from the Veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304 (c)(2017). In this instance, the Veteran has not submitted a waiver of RO consideration of the new evidence received. However, as discussed in detail below, the Board has relied on the new evidence to grant the full the benefit sought on appeal. Therefore, the Veteran is not prejudiced by the Board reviewing the new evidence submitted. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement for an increase rating for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACTS 1. The Veteran's PTSD is manifested by total occupational and social impairment, suicidal ideation, and memory impairment. 2. Claim for service connection for hearing loss was not received before August 29, 2008. 3. The Veteran had right ear hearing loss disability on August 4, 2009. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The Veteran's claim for a TDIU is moot. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). 3. The criteria for an effective date earlier than August 29, 2008 for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1115, 5110, 7105 (2012); 38 C.F.R. §§ 3.4 (b)(2), 3.31, 3.204, 3.400 (2017). 4. The criteria for an effective date of August 4, 2009 for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1115, 5110, 7105 (2012); 38 C.F.R. §§ 3.4 (b)(2), 3.31, 3.204, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Ordinarily, the Board must ensure that the required notice and assistance provisions of the VCAA have been properly applied. In this case, however, the Board is granting in full the benefit sought on appeal with respect to the claim for increase rating for PTSD. Therefore, the Board need not discuss whether there has been compliance with the VCAA, as any noncompliance ultimately amounted to no more than harmless error. 38 C.F.R. § 20.1102 (2017). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). With respect to the claim for earlier effective date, the VCAA is not applicable to the extent the claim has been substantiate and disposition of the claim is based on the law and not facts that are in dispute. To that end, VA has no duty to assist the appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid in substantiating this claim. See 38 U.S.C.A. § 5103A (2012); Wensch v. Principi, 15 Vet. App. 362, 368 (2001). As to TDIU, as discussed in greater detail below, under the facts of this appeal, the issue is moot based on the grant of a 100 percent rating for PTSD. II. Increase rating The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10 (2017). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Veteran's service-connected PTSD is rated as 50 percent disabling under DC 9411, which is part of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2017). Under the General Rating Formula, the next higher rating, a 70 percent is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. The symptoms recited in the criteria in the General Rating Schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In this case, the Board finds that the medical evidence of record supports a 100 percent rating for the Veteran's PTSD. The record contains a two letters from Dr. S.G. from June 2014 and October 2017, where he indicated that the Veteran had total social and occupational impairment. These letters noted that the Veteran has poor concentration, obsessional thought, severe anxiety, poor impulse control and inability to adapt stressful situations. Dr. S.G. wrote, in another letter dated August 2013, that the Veteran has nightmares, intrusive thoughts, suicidal thought, sleep disorder, flashbacks, and irritability as well as severe anxiety. Dr. S.G. further explained that the Veteran difficulty concentrating, he is hypersensitive to loud noises, and avoids crowds due to feeling unsafe. The Veteran underwent a VA examination in November 2013, where the examiner indicated that he has mild memory loss, difficulty establishing effective work and social relationship, as well as disturbance of motivation and mood. A June 2014 letter from Dr. V.C. indicates that the Veteran does not think he is able to live independently and that he has difficulty with communicating with his family. With respect to his occupation, Dr. V.C. indicated that the Veteran reports inability to communicate effectively or complete work because of his difficulty concentrating, as well as persistent flashbacks. He often isolates himself from coworkers. Dr. V.C. letter also shows that the Veteran had suicide ideations. Dr. V.C. also wrote two other letters in May 2015 and June 2017, where she noted that the Veteran's symptoms of insomnia, flashback, irritability, and avoidance of other have worsened. The Board finds that the letters from Dr. S.G. and Dr. V.C highly probative in establishing the current severity of the Veteran's PTSD. Both doctors have described manifestation of the Veteran's PTSD that is consistent with a 100 percent rating under DC 9411. In addition, the Board has considered the lay statement from the Veteran's son dated November 2015, which shows that the Veteran is irritable and easily angered. Considering the totality of the evidence of record and affording the Veteran the benefit of the doubt, the Board finds that the level of the Veteran's disability approximates the level of impairment contemplated by a 100 percent rating. III. TDIU The Veteran contends that entitlement for TDIU is warranted. US Court of Appeals for Veterans Claims (CAVC) has recognized that a 100 percent disability rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C.A. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C.A. § 1114(s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). In the current case, there is no allegation or evidence that a TDIU may be awarded independently of the Veteran's PTSD, rated 100 percent disabling. The other disabilities that the Veteran is service-connected for are tinnitus, which is rated as 10 percent disabling and bilateral hearing loss, which is rated as 0 percent disabling. Although cognizant that the issue of appropriate rating for hearing loss is remanded by this Board decision, the Veteran has not argued that his tinnitus and hearing loss prevented him from securing or following a substantially gainful occupation within the meaning of 38 C.F.R. § 4.16 (2017). Based on the facts of this case, as the Veteran has not indicated that hearing loss independently causes unemployability, the Board finds that it can determine that the issue of TDIU is moot in this case without awaiting final adjudication of the issue of the rating warranted for the service-connected hearing loss disability. Therefore, there is no basis to award a SMC. Because the Veteran's PTSD is found to be 100 percent disabling, there is no question or controversy for consideration by the Board with regard to TDIU. IV. Effective Date The Veteran disagrees with the effective date assigned to his service-connected bilateral hearing loss. The Board granted service connection for bilateral hearing loss in a decision dated March 2013. The RO implemented this decision by way of an April 2013 rating decision, where it assigned an August 29, 2008 effective date for the Veteran's left ear hearing loss and a December 24, 2012 effective date for his right ear. Section 5110(a), Title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase...shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." When an application for disability compensation is received within one year of the date of the Veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C. § 5110 (b)(1) (2012). In this case, the record does not reflect nor does the Veteran contend that his claim for service connection was received earlier than August 29, 2008. Therefore, absent evidence establishing that the claim was received earlier, an effective date earlier than August 29, 2008 is not warranted for the Veteran's left ear hearing loss. With respect to his right ear hearing loss, entitlement for service connection did not arise at the time of the claim was filed in August 29, 2008. That is, the Veteran's hearing loss in the right ear did not constitute disability for VA purposes at that time. 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, or 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(2017). In this case, the Veteran underwent VA audiology examination in October 2008, where there was no 40 decibels was noted at any frequency in the right ear. Although the exam found 30 decibels at 4000 HZ, there were no other frequencies with 26 decibels or greater was noted. Therefore, the October 2008 VA examination did not show hearing loss that constitutes a disability in the right ear. However, the Board finds that audio examination conducted in March 23, 2009 in the Veteran's private medical records, reflects a level of hearing loss in the right ear that is considered a disability. That is, affording the Veteran the benefit of the doubt, the Board interprets the audiogram from March 23, 2009 as showing 40 decibels at the 500 HZ frequency. VBMS and accompanying documents indicates that this private audiogram was received on August 4, 2009. As private evidence is not considered until received, August 4, 2009 is the date entitlement arose based on this evidence. The Board does not find a basis for an earlier effective date and the Veteran has not specifically asserted one. The Board has granted service connection as of the earliest competent evidence of a hearing loss disability in the right ear. ORDER A 100 percent rating for PTSD throughout the period of the appeal is granted, subject to the criteria applicable to the payment of monetary benefits. The appeal as to entitlement to a TDIU is dismissed. An effective date earlier than August 29, 2008 for left ear hearing loss is denied. An effective date of August 4, 2009 for service connection for right ear hearing loss is granted, subject to the criteria applicable to payment of monetary benefits. REMAND The Board regrets further delay, but additional development is necessary to adjudicate the remaining claim. With respect to the claim for increase rating for bilateral hearing loss, the Veteran testified that his hearing has gotten worse since his last VA examination in April 2013. VA has a duty to assist Veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that when a Veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Update VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his bilateral hearing loss. The claims file should be made available to the examiner, who should indicate in his/her report that the file was reviewed as part of the examination. The examiner should take a complete history from the Veteran. All indicated tests and studies should be completed. The examiner must describe all pertinent symptomatology. 3. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. 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. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs