Citation Nr: 18139728 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 16-08 103 DATE: October 1, 2018 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Entitlement to a disability rating in excess of 30 percent for PTSD prior to November 2015 is denied. An effective date of December 23, 2014 for the grant of service connection for bilateral hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss disability is manifested by auditory acuity of level I in the right ear and level III in the left ear. 2. Prior to November 2015, the Veteran’s PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. The Veteran’s entitlement to service connection for bilateral hearing loss arose on December 23, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. 1155, 5103, 5103A; 38 C.F.R. 3.159, 3.326, 4.1, 4.2, 4.10, 4.85, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to an initial disability rating in excess of 30 percent for (PTSD) prior to November 2015 have not been met. 38 U.S.C. 1155, 5103, 5103A; 38 C.F.R. 3.156, 3.159, 3.326, 4.1, 4.2, 4.10, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement service connection for bilateral hearing loss were met as of December 23, 2014. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1997 to March 2009. Effective Date The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. The Veteran asserts that the effective date for his bilateral hearing loss disability should be earlier. VA received a formal application for compensation benefits for bilateral hearing loss in February 2014. That claim was denied in a July 2014 rating decision. The Veteran’s claim for bilateral service connection was reopened and service connection granted for bilateral hearing loss with an effective date of October 2015. However, notably, in January 2015, within a year of the rating decision denying service connection for bilateral hearing loss, relevant VA treatment records were associated with the claims file. These records indicate that as of December 23, 2014, the Veteran experienced bilateral hearing loss. The effective date of an award of service connection is assigned based on consideration of the date that the claim upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, the receipt of new VA treatment records within one year of the July 2014 rating decision, created a pending claim, rather than a final adjudication. Based on VA regulations, an earlier effective date for bilateral hearing loss were met as of the date of the VA treatment record establishing the presence of bilateral hearing loss (December 23, 2014). Increased Rating 1. Entitlement to an initial compensable disability rating for bilateral hearing loss. The Veteran asserts that his bilateral hearing loss disability warrants a compensable disability rating. Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the pure tone threshold average. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) pure tone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. At the outset, the Board acknowledges that the Veteran experiences diminished hearing acuity (as shown by the results of audiometric testing); however, VA regulations do not provide for compensation for hearing loss until the diminished hearing acuity (or hearing loss) has reached a certain threshold. A December 2014 VA treatment record indicates that the Veteran experienced normal hearing in his right ear with the exception of mild to moderate loss at 4000 and 6000 Hz. He experienced normal hearing in the left ear through 1500 Hz. His word recognition scores were 100 percent in the right ear and 92 percent in the left ear. A hearing aid was ordered for his left ear. The Boards notes that the Veteran cannot be afforded a compensable rating under the criteria for unilateral hearing loss as the December 2014 VA treatment record does not provide sufficient information for rating purposes. 38 C.F.R. § 3.383, 3.385. A December 2015 VA examination is of record. The Veteran was noted to experience functional impact on ordinary conditions of life, characterized by difficulty hearing in a crowd or where there is background noise. The Veteran also reported that he is not able to hear general small noises, like when he is out hunting and cannot hear the animal before he sees the animal. The December 2015 VA examination includes a report of the Veteran’s hearing acuity. On the authorized audiological evaluation in, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 15 50 LEFT 25 25 55 75 80 The speech discrimination score was 96 percent in the right ear and of 84 percent in the left ear. Application of these findings to the regulations indicates an average hearing threshold of 26 dB in the right ear and 59 dB in the left ear. This equates to auditory acuity of level I in the right ear and level III in the left ear, which equates to a noncompensable rating when applied to the rating table. A March 2016 VA examination is also of record. The examiner noted that the Veteran experienced functional impact on ordinary conditions of life as previously documented in his last VA examination. Additionally, the examiner noted that the Veteran reported that the ringing in his ears is most annoying and gets louder as his environment gets quieter. The March 2016 VA examination includes a report of the Veteran’s hearing acuity. On the authorized audiological evaluation in, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 15 20 60 LEFT 20 15 55 75 85 The speech discrimination score was 92 percent in the right ear and of 88 percent in the left ear. Application of these findings to the regulations indicates an average hearing threshold of 26 dB in the right ear and 58 dB in the left ear. This equates to auditory acuity of level I in the right ear and level III in the left ear, which equates to a noncompensable rating when applied to the rating table. An April 2016 VA medical statement is of record. The examiner was asked to comment on the functional impairment the Veteran experiences as a result of his service-connected hearing loss and tinnitus, and refrain from opining on employability. The examiner reported that based on the Veteran’s March 2016 VA examination, the Veteran’s hearing loss would cause difficulty hearing clearly in the presence of background noise and from a distance. The Veteran may also experience difficulty localizing sound sources due to the asymmetry of his hearing. The examiner found that the Veteran would perform best in situations where communication is one-on-one in quiet environments free from background noise. He should not have significant difficulty hearing over the telephone. With appropriately fitted amplification, which he is a good candidate for, he should be able to function similarly to peers in the majority of work environments. There should be no impact on work done independently. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. The Board finds the VA examiners’ observations of the Veteran’s comments during the VA examinations and the supplement statement are sufficient to comply with the applicable VA policies. Additionally, the Board has considered the Veteran’s lay statement that he experiences hearing loss worse in the left ear and must wear a hearing aid because of this. The Board recognizes the Veteran is competent to report the symptoms of his hearing difficulty. However, 38 C.F.R. § 4.85 and 4.86 require that specific auditory thresholds and/or speech recognition scores be shown before impaired hearing may be found to be compensable. The Board finds that the functional effects of the Veteran’s bilateral hearing loss disability are adequately addressed by the rating assigned. Arguably, the medical evidence of record indicates that the Veteran experiences increasing difficulty from tinnitus symptoms rather than bilateral hearing loss. The Veteran’s tinnitus is noted to increase as his environment becomes quieter and to interfere with his ability to fall asleep. The Board notes that while the Veteran experiences problems caused by hearing loss, he has not described any unusual impact from his hearing loss. The manifestations of the Veteran’s hearing loss all concern difficulty in hearing conversations and general noises, which are contemplated by the applicable rating criteria. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s bilateral hearing loss disability. 2. Entitlement to an initial disability rating in excess of 30 percent for (PTSD). The Veteran filed an original claim for PTSD in February 2014. The claim was denied and the Veteran timely appealed. The Veteran was granted service connection for PTSD with an effective date of February 2014. The Veteran was granted a staged rating as follows: 30 percent evaluation effective February 2014 with a temporary 100 percent evaluation from September 2014 to November 2014. The Veteran’s rating then returned to a 30 percent disability evaluation effective November 2014 until November 2015 when he was granted a 100 percent disability evaluation. The Veteran asserts entitlement to a disability evaluation in excess of 30 percent for PTSD prior to November 2015. PTSD is evaluated under either the General Rating Formula for Mental Disorders. 38 C.F.R § 4.130, Diagnostic Codes 9411. Pertinent to this appeal, the General Rating Formula for Mental Disorders rates PTSD as follows: 30 percent: 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 50 percent: occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 70 percent: 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 inability to establish and maintain effective relationships. 100 percent: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; 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 or place; and memory loss for names of close relatives, for the veteran’s own occupation, or own name. 38 C.F.R § 4.130, Diagnostic Code 9411 General Rating Formula for Mental Disorders (2016). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Initially, the Board notes that the record indicates that the Veteran did not receive formal outpatient mental health treatment and that the mental health observations of record were obtained during periods when the Veteran received in-patient treatment or participated in treatment for other medical conditions. Significantly, 2014 VA treatment records note that the Veteran received in-patient treatment for addiction treatment and recovery. Mental health assessments during this time indicate that the Veteran experienced anxiety, mild depression, unstable mood, nightmares, and difficulty sleeping. He denied homicidal and suicidal ideations, auditory and visual hallucinations, and psychotic symptoms. He was independent in activities of daily living (ADLs). A December 2014 VA examination confirms the Veteran’s diagnosis of PTSD, characterized by chronic sleep impairment, and a substance abuse disorder, which is noted to be in remission. The examiner attributed all current symptoms to PTSD. The examiner found that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He was assessed with relevant speed, logical thought process, negative psychosis or delusion, an okay mood with congruent affect, fully oriented, improved insight and judgment, and an intact memory. The Veteran continued to receive treatment for substance abuse in 2015, but little PTSD related treatment. He received additional in-patient treatment for addition and recovery starting in September 2015. Mental health assessments during this time indicate the Veteran endorsed depressed mood and PTSD symptoms including nightmares, hypervigilance, and agoraphobia. He denied anhedonia, stating he enjoys fishing and hunting. He demonstrated no aggressive thoughts to self and others, judgment was adequate, his mood and affect were stable, he was oriented times three, his speech was normal and his thinking logical. In November 2015, the Veteran reported significant depression and disturbed sleep. He was admitted to residential treatment for management of his depression. Prior ot November 2015, the medical evidence of record shows no indication that the Veteran experiences occupational and social impairment sufficient to warrant a disability rating in excess of 30 percent. VA treatment records indicate that the Veteran experienced mild to moderate symptoms of PTSD, and did not receive in-patient treatment for PTSD prior to November 2015. Of note, the Veteran received significant treatment for non-service-connected substance abuse from October 2014 to November 2015. The Veteran received little treatment for his PTSD during the same period. Additionally, the Veteran’s most severe PTSD symptom from October 2014 to November 2015 was chronic sleep disturbance. He experienced no panic attacks, no memory loss, no impaired judgment, no abstract thinking, no impaired speech, and denied homicidal and suicidal ideations. Further, the December 2014 VA examination made a specific finding that the Veteran’s PTSD symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In November 2015, the Veteran reported significant mental health symptoms. At that time, the clinician noted that the Veteran’s significant depressive symptoms and PTSD-like symptoms warranted his admission to in-patient treatment. The Veteran’s need for in-patient treatment indicates entitlement to a 100 percent disability rating. However, such entitlement did not arise prior to November 2015. Accordingly, a disability rating in excess of 30 percent prior to November 2015 (other than the currently granted temporary 100 percent evaluation from September 2014 to November 2014) is not warranted. 3. Entitlement to an earlier effective date prior to November 2015 for the grant of a 100 percent disability rating for PTSD. The Veteran filed an October 2015 application for a temporary total 100 percent disability rating due to hospitalization. At that time, the Veteran stated that he experienced an in-patient hospitalization in September/October 2015 and was then readmitted as of November 2015. The Veteran was granted a for a 100 percent disability rating effective November 2015. The Veteran asserts that the effective date for his 100 percent disability rating should be earlier. An earlier effective date requires that the Veteran’s treatment records demonstrate total occupational and social impairment prior to November 2015. As stated above, the Veteran did not experience severe symptoms of PTSD until November 2015. At that time, the clinician noted that the Veteran’s symptoms warranted his admission to in-patient treatment. The Veteran’s need for in-patient treatment indicates entitlement to a 100 percent disability rating. However, such entitlement did not arise prior to November 2015. The Board recognizes that the Veteran experienced symptoms of PTSD prior to the November 2015. However, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective date has been appropriately assigned. While sympathetic to the Veteran’s belief that an earlier effective date is warranted based on hospitalization, the evidence of record indicates the Veteran was hospitalized prior to November 2015 for a non-service-connected substance abuse disorder. The Veteran is therefore ineligible for a disability rating associated with a non-service-connected disability. For the reasons outlined above, the Board is precluded by law from assigning an effective date prior to November 2015. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel