Citation Nr: 18148162 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 16-08 798 DATE: November 8, 2018 ORDER Entitlement to a compensable disability rating for a bilateral hearing loss disability is denied. Entitlement to an effective date earlier than October 18, 2016 for the award of service connection for right lower extremity radiculopathy associated with degenerative disc disease of the lumbosacral spine is denied. Entitlement to an effective date earlier than October 18, 2016 for the award of service connection for left lower extremity radiculopathy associated with degenerative disc disease of the lumbosacral spine is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disease or injury is remanded. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine is remanded. Entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy associated with degenerative disc disease of the lumbosacral spine is remanded. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy associated with degenerative disc disease of the lumbosacral spine is remanded. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an effective date earlier than June 5, 2017 for the award of a 20 percent disability rating for degenerative disc disease of the lumbosacral spine is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss disability is currently manifested by no more than level I hearing impairment in the right ear and level I hearing impairment in the left ear. 2. Medical evidence dated October 18, 2016 documented right lower extremity radiculopathy associated with the Veteran’s service-connected degenerative disc disease of the lumbosacral spine that was subsequently awarded in a July 2017 rating decision; no communications were received by VA prior to that time that may be construed as a formal or informal claim for right lower extremity radiculopathy. 3. Medical evidence dated October 18, 2016 documented left lower extremity radiculopathy associated with the Veteran’s service-connected degenerative disc disease of the lumbosacral spine that was subsequently awarded in a July 2017 rating decision; no communications were received by VA prior to that time that may be construed as a formal or informal claim for left lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable disability rating for the service-connected bilateral hearing loss disability are not met. See 38 U.S.C § 1155 (2012); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2017). 2. The criteria for an effective date prior to October 18, 2016 for the grant of service connection for right lower extremity radiculopathy associated with degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria for an effective date prior to October 18, 2016 for the grant of service connection for left lower extremity radiculopathy associated with degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2001 to February 2002 and from August 2004 to January 2006. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions rendered by the Regional Office (RO) of the Department of Veterans Affairs (VA). On the Veteran’s substantive appeals dated February 2016, January 2017, and February 2018, he requested a hearing before a Veterans Law Judge. However, in a statement dated August 2018, he cancelled his hearing request. Accordingly, his request for a hearing is considered to be withdrawn and his claims will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704(e) (2017). In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans’ Claims (Court) held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the Board notes that the Veteran has put forth statements indicating that he believes his service-connected PTSD renders him unemployable. See a statement from the Veteran dated July 2018. Accordingly, in light of the holding in Rice, the issue on appeal includes entitlement to TDIU. Increased rating for bilateral hearing loss disability Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017). The Veteran’s entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold and as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. The vertical lines in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. The percentage evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85 (2016). The provisions of 38 C.F.R. § 4.86(a) provide that when the puretone thresholds 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1000 hertz, and 70 dB 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. The Veteran seeks entitlement to a higher rating for his bilateral hearing loss disability, which is currently evaluated as noncompensable (zero percent disabling) under 38 C.F.R. § 4.85 (2017). As was explained in the law and regulations section above, the resolution of this issue involves determining the level of hearing acuity in each ear. A VA audiological evaluation dated June 2017 noted the Veteran’s wearing of hearing aids. Puretone thresholds during the June 2017 VA examination were recorded as: HERTZ 1000 2000 3000 4000 RIGHT 10 10 15 65 LEFT 10 15 20 70 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 96 percent for the right ear and 98 percent for the left ear. The examination yielded a numerical designation of I in the right and left ears (0-41 percent average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination). Entering the category designations into Table VII, a disability percentage evaluation of zero percent is for assignment under Diagnostic Code 6100. The Board has considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86(a) & (b). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran’s hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep’t of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10. The Court also noted, however, that even if an audiologist’s description of the functional effects of the Veteran’s hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination, and here the Veteran has not presented any evidence that the examination was defective or that there was any prejudice caused by any deficiency in the examination. Indeed, the Veteran reported during the June 2017 VA examination that if he is not looking at someone, he has a very difficult time hearing them especially in congested environments and around background noise. The Board has considered the statements made by the Veteran regarding his hearing loss. The schedular criteria, however, are specific, and the Veteran’s hearing loss is simply not of such severity to warrant a compensable rating based on audiological testing results of record. See Lendenmann, 3 Vet. App. at 349. Therefore, the Veteran’s claim for a compensable rating for bilateral hearing loss is denied. Earlier effective dates for service connection for right and left lower extremity radiculopathy Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claims were received by VA after that date, the former regulations apply. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2) (2017). A claim is defined as a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2017). Any communication or action that (1) indicates an intent to apply for one or more VA benefits and (2) identifies the benefit sought may be considered an informal claim. 38 C.F.R. § 3.155(a) (2015). When determining the effective date of an award of compensation benefits, VA must review all the communications in the file that could be interpreted to be a formal or informal claim for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). VA must look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. VA has a duty to fully and sympathetically develop the Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the RO granted service connection for right and left lower extremity radiculopathy associated with degenerative disc disease of the lumbosacral spine in a July 2017 rating decision and assigned 10 percent disability ratings effective October 18, 2016. The assigned effective dates were based on the first documentation of these disabilities as medical evidence of record demonstrated such. Notably, the Veteran’s claim for an increase for his service-connected degenerative disc disease of the lumbosacral spine was not received by the RO until June 5, 2017. However, the Veteran contends that earlier effective dates are warranted for the awards of right and left lower extremity radiculopathy. Although the Veteran contends that earlier effective dates are warranted, the Board finds that there is no basis for assignment of effective dates for award at any time prior to October 18, 2016. Simply stated, there was no pending claim, informal or formal, filed prior to October 18, 2016 pursuant to which the benefits awarded could have been granted. The record is completely negative for any communication or action prior to October 18, 2016 indicating an intent to apply for service connection for right or left lower extremity radiculopathy from the Veteran, his attorney, or some person acting as his next friend which identifies that benefit as the one sought. Inasmuch as no claim for service connection for a right or left lower extremity radiculopathy was received prior to October 18, 2016, the governing legal authority makes clear that, under these circumstances, the effective date can be no earlier than the date of the claim for that benefit. See 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). On October 18, 2016, the RO received medical evidence that the Veteran had right and left lower extremity radiculopathy associated with his service-connected degenerative disc disease of the lumbosacral spine. Further, on June 5, 2017, the Veteran filed a claim for an increased rating for the degenerative disc disease of the lumbosacral spine. As indicated above, the medical evidence dated October 18, 2016 served as the basis for the RO’s July 2017 rating action that granted service connection. In this regard, the Board notes that, while the VA does have a duty to assist a claimant in developing facts pertinent to a claim, it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by the VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The Board finds that the facts of this case clearly demonstrate that the VA was not put on notice that service connection for right and left lower extremity radiculopathy was sought at any time prior to October 18, 2016. To the extent that the Veteran contends that his right and left lower extremity radiculopathy should date to February 21, 2007 which is the effective date assigned for his degenerative disc disease of the lumbosacral spine in which he was awarded service connection in a July 2007 rating decision, the Board notes that the Veteran did not file a notice of disagreement as to the assigned disability rating or effective date for that disability. The July 2007 rating decision therefore became final. Indeed, there was no communication indicating an intent to file an increased rating claim for the lumbar spine disability until June 5, 2017. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision, as is the case here as concerning the prior July 2007 rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). The Veteran has not alleged CUE in the earlier decision. Because there is no earlier date of claim, earlier effective dates for the awards of service connection for right and left lower extremity radiculopathy associated with degenerative disc disease of the lumbosacral spine are not warranted. REASONS FOR REMAND Higher evaluations for PTSD, degenerative disc disease of the lumbosacral spine, and right and left lower extremity radiculopathy; service connection for sleep apnea; earlier effective date for degenerative disc disease of the lumbosacral spine; and TDIU With regard to the Veteran’s claim of entitlement to an increased disability rating for PTSD, the Veteran was last afforded a VA examination for his PTSD in October 2014. Notably, in a statement dated July 2018, the Veteran reported that his PTSD has become worse and noted that the PTSD affects every aspect of his life and that he avoids crowds and has social isolation. In light of the foregoing, the Board finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran’s PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997. With respect to the Veteran’s claim of entitlement to an increased disability rating for degenerative disc disease of the lumbosacral spine, while the record contains a June 2017 VA examination regarding the Veteran’s lumbar spine disability and this is the most recent VA examination of record, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements. The examination also does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must “[E]licit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why [he or] she c[an] not do so.” Sharp, 29 Vet. App. at 35. While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community or attempt an estimate based on the Veteran’s reports. The Board additionally notes that as the VA examiner will conduct neurological testing during examination of the Veteran’s degenerative disc disease of the lumbosacral spine, the Board finds that the claims of entitlement to increased disability ratings for right and left lower extremity radiculopathy are inextricably intertwined with the Veteran’s claim of entitlement to an increased disability rating for degenerative disc disease of the lumbosacral spine. Moreover, the Board finds that the Veteran’s increased disability rating claim for his lumbar spine disability is inextricably intertwined with his claim of entitlement to an earlier effective date for the award of a 20 percent disability rating for the lumbar spine disability. In other words, development of his increased rating claim for the lumbar spine disability may impact his earlier effective date claim and increased rating claims for right and left lower extremity radiculopathy. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. With regard to the Veteran’s claim of service connection for sleep apnea, the Veteran contends that he has sleep apnea that is related to his service or is alternatively secondary to his service-connected PTSD. The Board notes that a November 2005 service examination documents the Veteran’s report of feeling tired after sleeping. He also reported difficulty sleeping on an August 2006 post-deployment examination. The Veteran was provided a VA examination for his sleep apnea in November 2015. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with sleep apnea but could only speculate as to whether the Veteran’s sleep apnea is caused by his PTSD. No opinion was rendered as to whether the Veteran’s sleep apnea is aggravated by the PTSD or related to service. As such, the Board finds that a medical opinion should be obtained on remanded as to whether the Veteran’s sleep apnea is related to service or is caused or aggravated by his service-connected PTSD. Additionally, under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such is raised by the record. As noted in the Introduction above, it appears the Veteran has raised a claim for a TDIU based on his service-connected PTSD. On remand, the AOJ should request that the Veteran submit a completed application for increased compensation based on unemployability (VA Form 21-8940), and upon receipt of this form, take any appropriate action deemed necessary to adjudicate his claim. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he file a completed application for increased compensation based on unemployability (VA Form 21-8940), and upon receipt of this form, take any appropriate action deemed necessary to adjudicate his TDIU claim. 2. Thereafter, provide the Veteran with an appropriate VA examination to determine the current symptoms and severity of his service-connected PTSD. The claims folder must be made available to the examiner. All tests and studies deemed necessary by the examiner should be performed. In discussing the relevant clinical findings, the examiner should specifically note the Veteran’s current complaints, symptoms, any interference with daily and/or occupational activities, and the level of disability. 3. Schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the likely etiology of his sleep apnea. The claims file, including a copy of this REMAND, must be made available to the examiner for review. Based on the review and the examination, the examiner should respond to the following: a. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran’s sleep apnea is related to his service, to include his report of feeling tired after sleeping in November 2005. The examiner should also address the Veteran’s August 2006 post-deployment report wherein the Veteran documented difficulty sleeping. b. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran’s sleep apnea is caused or aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected PTSD. If the examiner finds that the sleep apnea is aggravated by the service-connected PTSD, then he/she should quantify the degree of aggravation, if possible. In providing the requested opinion, the examiner should address medical literature submitted by the Veteran noting a connection between sleep apnea and PTSD including the 2015 Journal of Sleep Medicine article posted in the file on January 6, 2016. 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. 4. Schedule the Veteran for appropriate VA examination(s) to assess the orthopedic manifestations of the Veteran’s service-connected degenerative disc disease of the lumbosacral spine. The claims folder must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by her visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the lumbar spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Regarding any neurological impairment, the examiner must in particular render an opinion as to the current severity of the Veteran’s radiculopathy of the right and left lower extremities. The examiner should note the symptomatology attributable to the neurological impairment and comment as to whether the symptoms are best described as mild, moderate, or severe incomplete nerve paralysis or complete paralysis. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 5. After review of the evidence of record, readjudicate the Veteran’s claims remanded herein to include entitlement to TDIU. If the benefits sought on appeal are denied, the Veteran and his attorney should be provided a new Supplemental Statement of the Case. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel