Citation Nr: 18157976 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-45 956 DATE: December 14, 2018 ORDER Entitlement to an effective date prior to July 6, 2015 for a 70 percent rating for bilateral hearing loss is denied. REMANDED Entitlement to a rating in excess of 70 percent for bilateral hearing loss is remanded. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to special monthly compensation (SMC) based on housebound criteria or aid and attendance is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to September 21, 2016 for a 70 percent rating for PTSD is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for increased rating for service-connected bilateral hearing loss on July 6, 2015. 2. The Veteran was granted an increased rating of 70 percent for service-connected bilateral hearing loss effective July 6, 2015 in an October 2015 rating decision. 3. It was not factually ascertainable that an increase in the Veteran’s bilateral hearing loss occurred during the year preceding the claim filed on July 6, 2015. CONCLUSION OF LAW The criteria for the assignment of an effective date prior to July 6, 2015 for establishing a 70 percent evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 5110, 5103A; 38 C.F.R. §§ 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1971 and July 1975. Earlier Effective Date Entitlement to an effective date prior to July 6, 2015, for a 70 percent rating for bilateral hearing loss. Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. Thus, the plain language of section 5110(b)(2) only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim. Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). Here, the Veteran filed a claim for increase for his hearing loss that was received on July 6, 2015. A VA examination was provided in August 2015 and showed a decrease in the Veteran’s hearing acuity. An October 2015 rating decision granted the Veteran an increase rating of 70 percent, effective July 6, 2015. In a November 2015 correspondence, the Veteran asserted that the effective date for an increased rating for bilateral hearing loss should be effective in July or August 2014. The Veteran stated that in July or August 2014 he sent a claim for an increased rating for hearing loss to his representative, but that he did not hear from VA after six months. The Veteran stated that when he contacted his representative, the representative told him that the claim from 2014 had been submitted to VA but also advised him to file an expedited claim with VA. The Veteran then filed a claim in July 2015, which was adjudicated in October 2015. While the Board understands the Veteran’s concerns, the Board finds that there is no basis to grant an effective date prior to July 6, 2015 for the grant of an increased rating for bilateral hearing loss. Here, although the Veteran asserts that he submitted a claim for increase to his representative in 2014, the first date on which a claim was received by VA is July 6, 2015. There is no evidence from the Veteran or the representative that a claim for increase was filed in 2014. The Veteran’s claims file is simply absent of evidence of any claim being filed in 2014. Further, VA treatment records in the year prior to July 2015 indicate that the Veteran complained of a decline in his hearing in August 2013, and a June 2014 medical provider found that Veteran to have a decrease in his word recognition score. However, despite these statements, there is no evidence of an increase in the Veteran’s hearing loss disability with audiometry testing as required by 38 C.F.R. § 4.85 in the year prior to the claim. The Veteran’s complaint and decrease in word recognition do not support the assignment of a higher rating for the Veteran’s bilateral hearing loss in the year prior to July 6, 2015. Based on review of the evidence on record, the Board finds that nothing in the record demonstrates that the Veteran’s service-connected bilateral hearing loss increased in severity in the year prior to July 6, 2015, so as to warrant a higher schedular rating. The Board thus concludes that July 6, 2015, the date of receipt of the claim, is the correct effective date of the grant of a 70 percent disability rating for his service-connected bilateral hearing loss. See 38 C.F.R. § 3.400(o)(2). REASONS FOR REMANDED 1. Entitlement to a rating in excess of 70 percent for bilateral hearing loss. In Savage v. Shinseki, the Court held that private audiological examinations that did not specify, among other things, the type of speech recognition testing conducted were exactly the type of medical record that VA has a duty to seek to clarify, as the reports in question “reasonably appear[ed] to contain information that is not otherwise in the record and that may potentially help substantiate” a Veteran’s claim. Savage, 24 Vet. App. 259 (2011). A June 2017 private audiological examination showed puretone thresholds of 94 decibels in the right ear and 106 in the left ear. Word recognition testing revealed speech recognition ability of 16 percent in the right ear and 20 percent in the left ear. The medical provider indicated that the Veteran had moderately-severe to profound hearing loss in the right ear and asymmetric severe to profound hearing loss in the left ear. In addition, the medical provider indicated that the Veteran’s word recognition score was very poor. However, the examination did not indicate what speech discrimination test was administered. Therefore, remand is required for clarification. Additionally, as this evidence suggests that the Veteran’s current hearing loss may have worsened since the October 2016 VA examination, the Board finds that a new VA examination is warranted. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. Entitlement to a rating in excess of 70 percent for PTSD. In a March 2018 private treatment letter, Dr. M. stated that the Veteran has total occupational and social impairment because of PTSD, anxiety and depression that have a profound effect on his daily life. Dr. M. indicated that the Veteran’s symptoms are thought processes with gross impairments; communication processes with gross impairments; grossly inappropriate behavior; delusions; persistent danger of self-harm and harm to others; intermittent inability to perform activities of daily living; memory loss; disorientation to time and place; flashbacks; nightmares; frightening thoughts; avoidance; hypervigilance; strong feelings of guilt, depression, and worry; loss of interest in activities; feeling emotionally numb; hopelessness; agitation; and an inability to focus and concentrate. The Veteran last underwent a VA examination in October 2016. However, since that time, the Veteran’s private treatment provider, Dr. M., has indicated that there has been a worsening of the Veteran’s PTSD. As it has been over two years since the Veteran has been provided with VA examination concerning his claim for an increased rating for PTSD and there is an assertion of worsening symptomatology, a remand is warranted to ensure that the record contains evidence of the current severity of the Veteran’s service-connected PTSD. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). 3. Entitlement to SMC based on housebound criteria or aid and attendance. 4. Entitlement to a TDIU. 5. Entitlement to an effective date prior to September 21, 2016, for a 70 percent rating for PTSD. Finally, because a decision on the claims of increased rating for bilateral hearing loss and PTSD could significantly impact a decision on the issues of entitlement to SMC, TDIU, and an earlier effective date for an increased rating for PTSD, the issues are inextricably intertwined. A remand of the claims for SMC, TDIU, and earlier effective date for an increased rating for PTSD is required. The matter is REMANDED for the following action: 1. With any necessary assistance from the Veteran, contact the Veteran’s private medical provider at Tustin Hearing Center in Tustin, California and ask them to clarify whether the Maryland CNC word list was used during the Veteran’s June 2017 audiological examination. Document all efforts made to obtain this clarification. 2. Then, arrange for a VA examination to determine the current severity of the Veteran’s hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and functional impairment due to hearing loss alone. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel