Citation Nr: 1805250 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-33 532A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome of the hands. 2. Entitlement to service connection for degenerative joint disease of the bilateral fingers. 3. Entitlement to service connection for an acquired psychiatric disorder. 4. Entitlement to service connection for a sciatic nerve disorder of the right lower extremity. 5. Entitlement to service connection for a sciatic nerve disorder of the left lower extremity. 6. Entitlement to an initial compensable disability evaluation for bilateral hearing loss. 7. Entitlement to an effective date earlier than August 19, 2014, for the grant of service connection for bilateral tinnitus. REPRESENTATION Veteran represented by: Kathy A. Lieberman, Attorney at Law ATTORNEY FOR THE BOARD A. Rocktashel, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2012, September 2014, and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The January 2012 rating decision granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating. It also denied service connection for carpal tunnel syndrome and degenerative joint disease of the fingers. The September 2014 rating decision denied service connection for a "nervous condition claimed as depression/anxiety," and sciatic nerve disabilities of the lower extremities. The January 2015 rating decision granted service connection for bilateral tinnitus and assigned an effective date of August 19, 2014. The Veteran or his attorney submitted additional evidence since the date of the last adjudications in January 2015 and November 2015, for the hearing loss and tinnitus issues, respectively. This evidence is not pertinent to the issues on appeal. Therefore, RO consideration of the evidence in the first instance is not necessary and the Board can proceed with adjudication of the case on the merits. In accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has re-characterized the issue on appeal of service connection for a nervous condition claimed as depression or anxiety to one of service connection for an acquired psychiatric disorder. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, a TDIU was not raised by the record or asserted by the Veteran. Accordingly, the TDIU claim is not before the Board as a component of his claim for an increased evaluation. Id. The issues of entitlement to service connection for carpal tunnel syndrome of the hands, service connection for degenerative joint disease of the fingers, service connection for an acquired psychiatric disorder, and service connection for a sciatic nerve disorder of the right and left lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A bilateral hearing loss disability was manifest by hearing loss of no worse than a Level I rating in each ear. 2. VA received no communication from the Veteran evidencing an intent to file claim of service connection for tinnitus earlier than August 19, 2014. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. An effective date earlier than August 19, 2014, is not warranted for the award of service connection for bilateral tinnitus. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.400, 3.816, 3.114 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Regarding the Board's duty to assist, the Veteran's attorney raised issues of not receiving complete service treatment records and certain treatment records from the VA medical center through January 2015. The Board notes that service treatment records are not relevant to the claims being decided here and that the Board has treatment records through September 2014 which it has viewed. The Board finds that later treatment records are not relevant to the issue of an earlier effective date for tinnitus, as such an inquiry in this case is based on records of whether a claim was asserted, not on treatment records dated after the existing effective date. The Board further finds that, with respect to hearing loss, the VA examinations and treatment records through September 2014 provide sufficient representation of the severity of the Veteran's hearing loss, such that remand for four additional months of treatment records would not reasonably result in benefit to the Veteran. Otherwise, the Board notes that neither the Veteran nor his attorney have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Evaluation of Hearing Loss Disability Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). 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). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran seeks a compensable evaluation for his service-connected bilateral hearing loss disability. He filed his claim for service-connection benefits connected with this disability in November 2008. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85, DC 6100. Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86. That regulation states that: (a) When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels 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 will be evaluated separately. (b) When the puretone threshold is 30 decibels or less at 1000 Hertz, 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 elevated to the next higher Roman numeral. Each ear will be evaluated separately. A December 2011 VA audiological examination recorded pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 25 20 35 26 LEFT 30 30 30 45 34 Maryland CNC word list speech recognition scores were 96 percent in the right ear and 92 percent in the left ear. The Veteran reported the effects of the hearing loss on occupational impairment were difficulty understanding speech in situations with background noise or crowded environments. Applying these results to Table VI yields a finding of Level I hearing loss in each ear. Where hearing loss is at Level I in each ear, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85. An August 2014 VA audiological examination recorded pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 25 20 40 28 LEFT 30 40 55 60 46 Maryland CNC word list speech recognition scores were 96 percent in the right ear and 100 percent in the left ear. The Veteran reported the effects of the hearing loss on occupational impairment were "a fullness sensation on the left ear." Applying these results to Table VI yields a finding of Level I hearing loss in each ear. Where hearing loss is at Level I in each ear, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85. An April 2011 VA treatment audiological examination recorded pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 20 20 35 25 LEFT 25 35 55 60 43.75 Speech discrimination test results were provided. The scores were 100 percent in the right ear and 92 percent in the left ear. However, the record did not identify whether the Maryland CNC word list was used for the speech recognition testing. It is not necessary to clarify whether the Maryland CNC test was used because even if it had been, the Veteran's hearing loss would still be Level I in each ear based upon the results, and would not result in a higher rating. The results cannot be applied to Table VI in 38 C.F.R. § 4.85. There was not an exceptional pattern of hearing loss in either ear, thus precluding use of Table VIa. Because speech recognition testing cannot be used, the April 2011 examination is not usable for rating purposes. Based on a review of the evidence, the Board finds that a compensable evaluation is not warranted. A mechanical application of the rating criteria shows the Veteran's hearing loss disability does not meet the criteria for a higher rating. In reaching this conclusion, the Board has determined that the VA medical examinations are highly probative evidence. The Veteran's lay statements as to his symptoms are not competent evidence of hearing loss as it conforms to VA rating criteria. Therefore, the preponderance of the credible evidence is against an increased evaluation. All the Veteran's hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. The Veteran's hearing loss disability has manifested in difficulty hearing speech, which causes difficulties functioning in social and occupational environments. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Earlier Effective Date for Grant of Tinnitus The Veteran seeks an earlier effective date for the grant of service connection for tinnitus. The current effective date is August 19, 2014, the date of a VA audiological examination showing tinnitus is present. The Veteran contends he should be awarded an earlier effective date. The Veteran asserts that at the December 15, 2011, examination, he did not understand that tinnitus meant ringing in the ears, and therefore answered "no" to the question pertaining thereto. In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The effective date of the award based upon a claim to reopen is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r)(2017). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (1999); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The Board notes that the regulations defining a "claim" changed in March 2015. Here, as the purported claim was received prior to the change, the issue will be reviewed under the previous regulations. See e.g. December 2011 and August 2014 VA examinations. Under the pre-March 2015 framework, any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form would be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2014). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Also under the pre-March 2015 framework, a report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157 (2014). Once a formal claim for compensation has been allowed, receipt of a report of examination by VA or evidence from a private physician will be accepted as an informal claim for benefits. In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim. The provisions of the preceding sentence apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination. In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim. Id. The record in this case shows that in May 2011, the Veteran submitted an application for compensation, claiming service connection for a left ear condition. A September 2011 Report of General Information shows that a VA representative spoke with the Veteran and clarified that the "left ear condition" he claimed was left ear hearing loss. A December 15, 2011 VA examination was conducted, which included an evaluation of tinnitus. The examiner found tinnitus was not present. In the August 2014 VA examination, tinnitus was found. Thereafter, in March 2015, the Veteran's attorney submitted a statement asserting that the Veteran did not know that tinnitus meant ringing in the ears when he denied experiencing tinnitus at the December 2011 examination. Based on the foregoing, the Board finds that an effective date earlier than August 19, 2014, is not warranted. A preponderance of the evidence shows that the Veteran did not intend to claim service connection for tinnitus at any time prior to the RO granting it of its own accord. Regarding his initial claim for benefits for an ear condition, the Veteran clarified in a telephone call with VA that the condition he was claiming was hearing loss. Other than that, there are no communications that could reasonably be construed as a claim for tinnitus prior to August 19, 2014. With regard to the Veteran's contention in March 2015 that the December 2011 VA examination should be used as the basis for an earlier effective date, the Board finds that the findings in the December 2011 VA examination are more credible and have greater probative weight than the Veteran's contention the he didn't know ringing in the ears was tinnitus. This new statement was made several years after the examination in question and only after the Veteran was awarded service connection for tinnitus based on the RO's own initiative. Moreover, the Board is primarily limited to the historical record in earlier effective date claims. The historical record here does not evidence an intent to claim VA benefits for tinnitus. Indeed, the September 2011 telephone call with VA contradicts such intent. Even if the Board were able to retroactively change the Veteran's response to the December 2011 VA examination with regards to tinnitus, the regulations for accepting a VA examination as an informal claim require the receipt of a claim specifying the benefit sought within one year from the date of such examination. Here, no such claim was received. Accordingly, an effective date earlier than August 19, 2014, for the grant of service connection for tinnitus is not warranted. ORDER A compensable evaluation for a bilateral hearing loss disability is denied. An effective date earlier than August 19, 2014, for the grant of service connection for tinnitus is denied. REMAND The Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2017). In that regard, there are several areas of development. First, the Veteran has claimed that his established current nerve and joint disorders (i.e. carpal tunnel syndrome of the hands, arthritis of the fingers, and sciatica of the left and right lower extremities) are due to extended exposure to cold temperatures while in service at Fort Riley, Kansas. The Veteran submitted medical articles suggesting relationships between cold and arthritis (called "frostbite arthritis"), as well as cold and peripheral nerve disorders. As the Veteran has identified an in-service event, current disorders, and an indication that the current disorders may be related to the in-service event, a VA medical examination is required. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Next, the January 12, 2015 Statement of the Case references VA medical records from the San Juan VA medical system from February 2011 to January 2015. These records have not been associated with the file. The VA treatment records in the file only run through September 2014. On remand, the records referenced in the January 2015 Statement of the Case should be associated with the file. Next, the service treatment records associated with the file consist only of the enlistment and separation examinations. This defies credibility for a period of service of two years. Requests for records indicate all service treatment records were sent from the National Personnel Records Center. This raises the possibility that the records were not scanned properly into the Veterans Benefits Management System (VBMS). Alternatively, if all sent records have been properly scanned into VBMS, then records may be missing or unavailable. In such case, the Board finds that the proper procedures have not been followed with regards to obtaining records from a federal government source. See 38 C.F.R. § 3.159(c)(2) and (e). In particular, it does not appear that VA made as many requests as necessary to obtain these records, nor is there a record showing that VA concluded that further efforts to obtain the records would be futile. Moreover, the Veteran was not notified of any unavailability of such records. On remand, the availability of service treatment records should be addressed. Finally, the acquired psychiatric disorder claim is predicated on pain from the other claimed disabilities. Accordingly, if any of those claims is granted, the Veteran will have a basis for a secondary service connection claim. Thus, the acquired psychiatric disorder claim is inextricably intertwined with the nerve and joint disorder claims. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the VA treatment records from February 2011 through January 2015 that were identified in the January 2015 Statement of the Case. 2. Determine whether additional service treatment records are available, including whether there are records in the Veteran's paper file that have not been properly scanned into VBMS. If such records are not available the AOJ should make a finding as to whether further attempts to obtain such records would be futile and notify the Veteran that the records are unavailable. 3. Schedule the Veteran for a VA examination to determine the nature of his bilateral finger arthritis disability, and to obtain an opinion as to whether such is related to service. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current disability of the bilateral fingers arose during service or is otherwise related to service. In particular, the examiner should address the Veteran's contention that the disorder is due to his extended exposure to cold temperatures in service. A rationale for all opinions expressed should be provided. 4. Schedule the Veteran for a VA examination to determine the nature of his bilateral carpal tunnel syndrome disability, and to obtain an opinion as to whether such is possibly related to service. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current bilateral carpal tunnel syndrome arose during service or is otherwise related to service. In particular, the examiner should address the Veteran's contention that the disorder is due to his extended exposure to cold temperatures in service. A rationale for all opinions expressed should be provided. 5. Schedule the Veteran for a VA examination to determine the nature of his right and left lower extremity sciatic nerve disorder, and to obtain an opinion as to whether such is possibly related to service. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current right and left lower extremity sciatic nerve disorder arose during service or is otherwise related to service. In particular, the examiner should address the Veteran's contention that the disorder is due to his extended exposure to cold temperatures in service. A rationale for all opinions expressed should be provided. 6. Schedule the Veteran for a VA examination to determine the nature of his psychiatric disability, and to obtain an opinion as to whether such is possibly related to service. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current psychiatric disability arose during service or is otherwise related to service. IF AND ONLY IF the AOJ determines the Veteran's finger arthritis, carpal tunnel syndrome, and/or bilateral sciatic nerve condition are determined to be service-connected, the examiner should provide an opinion as to whether it is at least as likely as not that the psychiatric disability was caused by a service-connected disability, to include pain from such disability. IF AND ONLY IF the AOJ determines the Veteran's finger arthritis, carpal tunnel syndrome, and/or bilateral sciatic nerve condition are determined to be service-connected, the examiner should provide an opinion as to whether it is at least as likely as not that the psychiatric disability was aggravated beyond its natural progression by a service-connected disability, to include pain from such disability. A rationale for all opinions expressed should be provided. 7. If, upon completion of the above action, any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. 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). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs