Citation Nr: 18146932 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-19 892 DATE: November 5, 2018 ORDER Whether new and material evidence has been received sufficient to reopen a claim of service connection for bipolar disorder is denied. Service connection for a psychiatric disorder for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 is granted. A compensable rating for bilateral hearing loss is denied. An increased rating for tinnitus, to include extraschedular consideration is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In March 2006 decision, the RO disallowed service connection for bipolar disorder; the Veteran did not timely initiate an appeal of that decision within one year of notification and no new and material evidence was added to the record in the year following the decision. 2. Evidence added to the record since the March 2006 decision does not relate to an unestablished fact necessary to substantiate that claim and does not raise a reasonable possibility of substantiating that claim. 3. The Veteran served during the Persian Gulf War and developed an active mental illness within two years of separation from active service. 4. The Veteran’s bilateral hearing loss has been manifested by not worse than Level I hearing impairment in either ear. 5. The Veteran is in receipt of a 10 percent rating, the schedular maximum for tinnitus, and the rating schedule is adequate to evaluate the disability. 6. The Veteran’s service connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The March 2006 RO decision that disallowed service connection for bipolar disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1103 (2018). 2. The criteria for reopening a claim of entitlement to service connection for bipolar disorder have not all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (a) (2018). 3. The criteria for service connection for a psychiatric disorder for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 are met. 38 U.S.C. §§ 1702, 5103, 5103A, 5107 (2012); 38 C.F.R. § 17.109 (2018). 4. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2018). 5. The criteria for rating higher than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.87 Diagnostic Code (DC) 6260 (2018). 6. The criteria for TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.340, 3.341, 4.3, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1992 to July 1996. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from July 2011 and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The July 2011 rating decision denied increased ratings for bilateral hearing loss and tinnitus, denied service connection for treatment purposes only under 38 U.S.C. chapter 17 for treatment of bipolar disorder, and denied the Veteran’s attempt to reopen a claim of service connection for bipolar disorder. The July 2012 rating decision denied the Veteran’s claim of TDIU again and denied an increased rating for tinnitus. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is associated with the claims file. Service Connection 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for bipolar disorder Prior to the filing of the current claim of entitlement to service connection for a bipolar disorder, the AOJ previously denied a claim of service connection for bipolar disorder in October 2001 and again in March 2006. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2018). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2018). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2001). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2006). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The October 2001 rating decision denied service connection for bipolar disorder because the evidence received failed to establish any relationship between the Veteran’s bipolar disorder and any disease or injury during active duty military service. The Veteran’s prior attempt to reopen was denied in a March 2006 rating decision. Thus, the March 2006 is the last final disallowance of the claim. VA did not receive an NOD as to that decision within one year of notification of the decision and of the Veteran’s procedural and appellate rights mailed to him with a copy to his representative on March 28, 2006. No new and material evidence was received within one year of that notification. The March 2006 decision is final. The evidence received since the March 2006 rating decision includes additional treatment records confirming a current diagnosis of bipolar disorder and lay statements of the Veteran but does not contain any new evidence that related to whether his bipolar disorder had onset or was caused by his active service. In his May 2011 correspondence, the Veteran stated that there had to have been signs of bipolar during active duty that “were swept under the rug,” but did not identify any such signs or symptoms. Thus, this new evidence does not establish any in-service event, injury, or disease to which the Veteran’s current bipolar disorder can be linked. To the extent that these private treatment records suggest a long history of psychiatric symptoms beginning when the Veteran was eight years old, which could establish a pre-existing disability, they do not show that any in-service event, injury, or disease aggravated any such pre-existing disability. As such, this evidence is insufficient to trigger VA’s duty to provide an examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006) (requiring VA to provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim). Based on the reasons stated above, this new evidence does not relate to an unestablished fact necessary to substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the criteria for reopening a claim of service connection for bipolar disorder have not been met. 2. Service connection for a psychiatric disorder for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 The Veteran is seeking service connection for treatment purposes for his bipolar disorder. Under 38 U.S.C. § 1702 (a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a Veteran of World War II, before February 1, 1957, in the case of a veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service, for the purposes of eligibility to Chapter 17 benefits. 38 U.S.C. § 1702. In addition, under 38 U.S.C. § 1702 (b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability develops (1) within two years after discharge or release from active service, and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War. 38 U.S.C. § 1702 (c) specifies that there is no minimum length of active-duty service required for presumptive eligibility for psychosis and mental illness under this section. The Veteran was discharged from service in July 1996; he initially sought treatment at Lifespring Mental Health Services in January 1997, at which time he was diagnosed with schizoaffective disorder, bipolar type. Subsequently, his psychiatric diagnosis has generally been bipolar disorder. This demonstrates that the Veteran’s had manifestations of an active mental illness within two years of his discharge from service. Therefore, the Veteran meets the eligibility requirements set forth in 38 U.S.C. § 1702 (b) as he (i) is a veteran of the Persian Gulf War who (ii) developed an active mental illness (other than psychosis) within two years after discharge or release from the active military, naval, or air service. Service connection for a psychiatric disorder for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 is therefore warranted. Increased Rating 3. A compensable rating for bilateral hearing loss The Veteran is seeking a compensable rating for bilateral hearing loss. He was originally granted service connection for hearing loss in an October 2001 rating decision. At that time, he was assigned a noncompensable (0 percent) rating effective May 9, 2001. The Veteran filed his current claim for an increased rating in March 2011. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. As the evidence described below shows, neither of the patterns are present in this case. In describing the evidence, the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. In June 2011, the Veteran underwent a VA audio examination in conjunction with this claim. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 25 20 30 LEFT 35 10 25 25 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 in the left ear. He reported having the most difficulty hearing when there was outside interference (background noise). In May 2012, the Veteran underwent a VA audio examination in conjunction with this claim. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 20 20 30 LEFT 30 10 15 30 30 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 in the left ear. He stated that he had trouble hearing people talk sometimes. Based on the above, the Veteran’s right ear hearing loss corresponds to no worse than Level I and his left ear hearing loss corresponds to no worse than Level I. See 38 C.F.R. § 4.85, Table VI. Applying these measurements to Table VII, the Veteran’s hearing loss for this period warrants the current noncompensable (0 percent) rating. The record does not show an exceptional pattern of hearing impairment in either ear that would warrant application of Table VIA under 38 C.F.R. § 4.86. The Board is bound in its decisions by the VA regulations for the rating of hearing loss. 38 U.S.C. § 7104 (c). Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test. Application of the schedule to the facts of this case shows that a compensable rating is not warranted. Therefore, the Board finds that the preponderance of the evidence is against a higher schedular rating for bilateral hearing loss. At his April 2014 hearing, the Veteran requested extraschedular consideration. Thus, the Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is warranted in this case. In determining whether a referral for extraschedular evaluation is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran’s service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the Board finds that the Veteran’s symptoms do not constitute an exceptional or unusual disability picture. The Veteran has reported occasional difficulty hearing people speak and difficulty hearing when there was background noise. The diagnostic criteria specifically contemplate this symptomatology. The schedular criteria compensates for functional impairment that results from this symptomatology. Hearing difficulty is not an exceptional or unusual functional limitation resulting from bilateral hearing loss, and is reasonably compensated by the schedular rating, which provides objective measurement of hearing impairment. Consequently, the Board finds the Veteran’s bilateral hearing loss symptomatology, and the resulting functional impairment, is contemplated by the ratings schedule. For the reasons stated above, the Board declines to refer this case for extraschedular consideration. In conclusion, the preponderance of the evidence is against the Veteran’s claim for a compensable rating for bilateral hearing loss. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 4. An increased rating for tinnitus The Veteran was originally granted service connection for tinnitus in an October 2001 rating decision. At that time, he was assigned a 10 percent rating effective May 9, 2001. The Veteran filed his current claim for an increased rating in March 2011. Under 38 C.F.R. § 4.87, Diagnostic Code 6260, recurrent tinnitus warrants a maximum 10 percent rating. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260 limit a veteran to a single disability for tinnitus, regardless of whether the tinnitus is unilateral or bilateral). The Veteran’s service-connected bilateral tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating available from the effective date of the award of service connection. Again, at the Veteran’s request, the Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is warranted in this case. The Board finds that the Veteran’s symptoms do not constitute an exceptional or unusual disability picture. See Thun, 22 Vet. App. 115. The Veteran has reported constant ringing in his ears, which would annoy him sometimes. The diagnostic criteria specifically contemplate this symptomatology. The schedular criteria compensates for functional impairment that results from this symptomatology. Annoyance with his tinnitus is not an exceptional or unusual functional limitation resulting from tinnitus, and is reasonably compensated by the 10 percent rating. Consequently, the Board finds the Veteran’s tinnitus symptomatology, and the resulting functional impairment, is contemplated by the ratings schedule. For the reasons stated above, the Board declines to refer this case for extraschedular consideration. In conclusion, the preponderance of the evidence is against the Veteran’s claim for a rating higher than 10 percent for tinnitus. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 5. Entitlement to TDIU As an initial matter, the Board notes that the Veteran’s award of service connection for a psychiatric disorder under 38 U.S.C. § 1702 establishes eligibility for treatment only and does not result in a schedular rating. As such, this disability is not considered part of the Veteran’s service connected disability picture for TDIU purposes. Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, the Veteran is service-connected bilateral hearing loss and tinnitus with a total combined rating of 10 percent. This is insufficient to meet the schedular criteria for TDIU consideration. Although the Veteran did not meet the schedular requirements for TDIU, the claim may still be referred to the Director of Compensation Services for assignment an extraschedular rating if the evidence of record shows that the Veteran is “unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” 38 C.F.R. § 4.16 (b). (Continued on the next page)   Then the issue becomes whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran last worked full time in February 2000 when he left his job as a steel worker. He reported subsequent marginal work for his father. He is also in school for software development. Although the Veteran was no longer working, the record does not support a finding of unemployability due to his service connected disabilities. Instead, the bulk of his lay evidence relates his unemployment to his bipolar disorder, which is not service connected. Despite his May 2012 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, in which the Veteran indicated that his tinnitus prevented him from securing or following any substantially gainful employment, the medical evidence indicates that his occupational impairment from service connected disabilities is limited to occasional difficulty hearing people speak and his annoyance with his tinnitus. Thus, there is no showing of unemployability due to bilateral hearing loss and/or tinnitus upon which referral to the Director of Compensation Services can be based. Therefore, TDIU is not warranted. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Houbeck, Counsel