Citation Nr: 18157438 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 13-34 196A DATE: December 12, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to an effective date prior to June 9, 2009, for the grant of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU rating) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss began during active service. 2. On June 9, 2010, the Veteran raised a new claim seeking a TDIU rating. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for the assignment of an effective date prior to June 9, 2009, for the grant of entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1969 to August 1970, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Purple Heart and the Vietnam Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Board remanded this matter for additional development. 1. Entitlement to service connection for bilateral hearing loss. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2017). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran is seeking service connection for bilateral hearing loss. He attributes this condition to an exploding land mine in July 1970 while serving in Vietnam. The Veteran has previously been granted service connection for tinnitus and healed bilateral tympanic membrane perforations. Post service treatment records show that the Veteran currently has bilateral sensorineural hearing loss. Accordingly, the Board shall focus on whether his current bilateral hearing loss is related to his miliary service. Based upon a longitudinal review of the Veteran’s claims file, the Board concludes that service connection is warranted for bilateral hearing loss. His service personnel records confirm that he was awarded a Purple Heart Medal for injuries sustained when struck by an exploding land mine. A comparison of the audiological evaluations conducted pursuant to his enlistment examination in February 1969 and a subsequent audiological examination conducted in July 1970 reveals an upward shift in his hearing loss. In addition, the July 1970 examination was conducted in response to the Veteran’s complaints of ongoing hearing problems in both ears. Finally, the Veteran has reported having difficulty hearing ever since his miliary service. In contrast, a VA examiner in October 2017 opined that the Veteran’s current bilateral hearing loss was not related to his military service. The VA examiner based this conclusion upon normal audiological findings on a post service audiological evaluation in February 1971. No comparison between these findings and the Veteran’s audiological examination upon his entrance into service was made. Resolving all doubt in favor of the Veteran, service connection for bilateral hearing loss is warranted. In making this determination, the Board finds the statements provided by the Veteran to be competent and credible evidence. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). Moreover, a comparison of the Veteran’s inservice audiological examinations upon entrance and just prior to his separation document an increase in hearing loss during service. 2. Entitlement to an effective date prior to June 9, 2009, for the award of a TDIU rating. The Veteran seeks an effective date earlier than June 9, 2009, for the award of a TDIU rating. On June 9, 2010, the Veteran filed a claim seeking increased evaluations for his service-connected posttraumatic stress disorder (PTSD) and right knee disability; entitlement to service connection for a traumatic brain injury, tinnitus, perforated ear drums, bilateral hearing loss, left knee disability, impotency, and sleep apnea; and entitlement to a TDIU rating. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. In this context, the law provides that the effective date of the award “shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a Veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, a claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis must be referred to the Director of Compensation Service for consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). Following a longitudinal review of the record, the Board concludes that the Veteran filed a new claim seeking a TDIU rating on June 9, 2010. Thus, the currently assigned June 9, 2009, effective date is the earliest date which can be assigned for the award of TDIU. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. On these facts, no effective date for the grant of a TDIU rating earlier than June 9, 2009, is assignable. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The claim for an earlier effective date must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Yates, Counsel