Citation Nr: 18159525 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-60 378 DATE: December 20, 2018 ORDER Service connection for diabetes mellitus, type II, to include as due to in-service Agent Orange exposure is denied. An effective date prior to February 3, 2016, for the assignment of a 30 percent disability rating for bilateral hearing loss is denied. A rating higher than 30 percent for bilateral hearing loss prior to March 30, 2018, and higher than 40 percent thereafter, is denied. A rating higher than 10 percent for tinnitus is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACTS 1. Diabetes mellitus, type II, was not shown during active service or at any time thereafter. 2. On February 12, 2016, the Veteran’s claim for an increased rating for his bilateral hearing loss was received, preceded by a February 3, 2016 “intent to file.” In the one-year period prior to February 3, 2016, there is no evidence showing an ascertainable increase in disability of his bilateral hearing loss. 3. Prior to March 30, 2018, the Veteran’s bilateral hearing loss was manifested by exceptional hearing impairment with pure tone threshold average of 75 decibels (dB) in the right ear and 70 dB in the left ear; from March 30, 2018, hearing loss was manifested by a pure tone threshold average of 74 dB in the right ear, 64 dB in the left ear, and speech discrimination scores using the Maryland CNC word list of 42% for the right ear and 62% for the left ear. 4. The Veteran is currently assigned the maximum schedular rating for tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, to include as due to in-service Agent Orange exposure, are not met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a). 2. The criteria for an effective date prior to February 3, 2016, for the assignment of a 30 percent disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for a rating greater than 30 percent for bilateral hearing loss prior to March 30, 2018, and higher than 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for a rating greater than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1967 to September 1969. He served in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2016 and May 2018 rating decisions. 1. Service connection for diabetes mellitus, type II, to include as due to in-service Agent Orange exposure, is denied. The Veteran asserts that he has diabetes mellitus as a result of his active service. However, the record does not reflect that the Veteran has been found to have diabetes mellitus at any time. The report of a July 2016 VA diabetes mellitus examination states, “There is no objective evidence to support the diagnosis of Diabetes Mellitus Type II at this time.” Service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran asserts that he has diabetes mellitus. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran’s claim is supported solely by his own statements on appeal. The Veteran is competent to state that he experiences certain symptoms. However, the Board finds that his lay statements that such symptoms are attributable to diabetes mellitus do not constitute competent evidence of the existence of diabetes mellitus. A medical professional has expressly negated any conclusion that the Veteran has diabetes. The Veteran has not offered any medical qualifications. He is not competent to offer an opinion regarding the diagnosis of diabetes mellitus. The diagnosis of the claimed disorder is not amenable to observation by a lay person and requires specific clinical testing and correlation. It is too complex to be addressed by a layperson. The Veteran has not been shown to have diabetes mellitus at any time. In the absence of current disability, the Board finds that service connection may not be granted. 2. An effective date prior to February 3, 2016, for the assignment of a 30 percent disability rating for bilateral hearing loss is denied. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The law provides an exception to this general rule governing claims “for increase.” 38 U.S.C. § 5110 (a), (b)(2). If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). Therefore, three possible dates may be assigned depending on the facts of the 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, 605 F.3d at 982-8. In addition, the United States Court of Appeals for Veterans Claims (Court) has indicated that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, “the only cognizable ‘increase’ for this purpose is one to the next disability level” provided by law for the particular disability). Therefore, determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability occurred or was “ascertainable.” 38 C.F.R. §§ 3.155, 3.400(o)(2); Hazan, 10 Vet. App. at 521. Historically, in an August 2011 rating decision, the Veteran was originally granted service connection and assigned a noncompensable evaluation for bilateral sensorineural hearing loss – effective May 5, 2011. The Veteran did not appeal that decision, and it became final. See 38 U.S.C. § 7105. The Veteran subsequently filed for an increase in February 2016. In an August 2016 rating decision, the RO increased the Veteran’s bilateral hearing loss to 30 percent – effective February 3, 2016, which is the date his “intent to file” was received, just before he filed the claim for an increased rating. Based on the facts, no earlier effective date for the award of the 30 percent rating for bilateral hearing loss is valid. The February 3, 2016 date is appropriate because it is when VA received the “intent to file,” followed by the claim seeking the increase. There are no submissions received after the August 2011 rating decision and prior to February 3, 2016 that could be construed as a claim for an increase. There are also no pure tone thresholds and/or speech recognition scores to indicate that hearing loss had increased in severity within the one-year period prior to February 3, 2016. 3. A rating higher than 30 percent for bilateral hearing loss prior to March 30, 2018, and higher than 40 percent thereafter is denied. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. 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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s bilateral hearing loss has been assigned a 30 percent rating, effective prior to March 30, 2018, and a 40 percent rating thereafter. For the following reasons, the Board finds that the criteria for a higher evaluation are not satisfied. Hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. In evaluating service-connected hearing loss, disability ratings are derived from 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, measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. See 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the pure tone threshold average derived from the audiometry test and from the results of the speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See id. The horizontal columns in Table VI represent nine categories of dB loss based on the pure tone audiometry test. See id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone dB loss. Id. VA regulation also includes two provisions for evaluating certain patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning experienced by those with these types of patterns. See 64 Fed. Reg. 25203 (May 11, 1999). Under 38 C.F.R. § 4.86(a), if pure tone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 dB or more, an evaluation will be based either on Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in a higher evaluation. Each ear will be evaluated separately. Id. Under 38 C.F.R. § 4.86(b), when the pure tone threshold is 30 dB or less at 1000 Hertz and 70 dB or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa under 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. An April 2016 VA examination report reflects pure tone threshold averages in the right ear of 75 dB at 1000 Hertz, 70 dB at 2000 Hertz, 75 dB at 3000 Hertz, and 80 dB at 4000 Hertz. The pure tone threshold average based on these values was 75 dB. Pure tone thresholds in the left ear were 65 dB at 1000 Hertz, 65 dB at 2000 Hertz, 70 dB at 3000 Hertz, and 80 dB at 4000 Hertz. The pure tone threshold average based on these values was 70 dB. The speech recognition score, using the Maryland CNC word list, was 88% for the right ear and 90% for the left ear. Applying these values for the right ear to Table VI, i.e., the pure tone threshold average of 75 dB and the speech recognition score of 88%, yields designations of III for the right ear. However, Table VIA yields a designation of VI. Since it results in the highest value, it will be used. Applying these values for the left ear to Table VI, i.e., the pure tone threshold average of 70 dB and the speech recognition score of 90%, yields designations of III for the left ear. Table VIA yields a designation of VI. Since it results in the highest value, it will be used. See 38 C.F.R. §§ 4.85, 4.86, DC 6100. The point where designations VI and VI intersect in Table VII yields a 30 percent rating. See id. Therefore, a rating higher than 30 percent is not warranted prior to March 30, 2018. An April 2018 VA examination report reflects pure tone threshold averages in the right ear of 70 dB at 1000 Hertz, 75 dB at 2000 Hertz, 75 dB at 3000 Hertz, and 75 dB at 4000 Hertz. The pure tone threshold average based on these values was 74 dB. Pure tone thresholds in the left ear were 45 dB at 1000 Hertz, 60 dB at 2000 Hertz, 70 dB at 3000 Hertz, and 80 dB at 4000 Hertz. The pure tone threshold average based on these values was 64 dB. The speech recognition score, using the Maryland CNC word list, was 42% for the right ear and 62% for the left ear. Applying these values for the right ear to Table VI, i.e., the pure tone threshold average of 74 dB and the speech recognition score of 42%, yields designations of IX for the right ear. Applying these values for the left ear to Table VI, i.e., the pure tone threshold average of 64 dB and the speech recognition score of 62%, yields designations of VI for the left ear. Table VIA was not used for either ear because Table VI resulted in the higher numeral. See 38 C.F.R. §§ 4.85, 4.86, DC 6100. The point where designations IX and VI intersect in Table VII yields a 40 percent rating. See id. Therefore, a rating higher than 30 percent is not warranted prior to March 30, 2018. 4. A rating higher than 10 percent for tinnitus is denied. The Veteran is currently assigned a 10 percent rating for tinnitus under Diagnostic Code 6260. This code only provides for the 10 percent rating, and a higher percentage is not available anywhere else in the rating schedule for tinnitus. Tinnitus is “a noise in the ear, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). During his April 2016 VA examination, he reported occasional ringing in the ears. During his April 2018 VA examination, he reported that “off and on” ringing bothered him. In other words, the Veteran’s tinnitus symptoms are inherently addressed by the 10 percent rating assigned under Diagnostic Code 6260. He has not asserted that an extraschedular rating is warranted, and no other bases for an extraschedular rating have been reasonably raised by the record. Therefore, no further discussion is required regarding tinnitus. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran’s claim for a TDIU is considered part-and-parcel of his claim for an increased rating for hearing loss, and the Veteran’s attorney has expressly requested such consideration. Therefore, the Board will exercise jurisdiction over it. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has asserted that he is unable to work due to his service-connected disabilities of hearing loss and tinnitus. The combined evaluation from these disabilities does not meet the schedular criteria for a TDIU found in 38 C.F.R. § 4.16(a). Nevertheless, a TDIU may still be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b), and the Veteran has submitted evidence to support his contention, to include a May 2018 private vocational assessment. Therefore, referral for extraschedular TDIU consideration is appropriate.   The matters are REMANDED for the following action: Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck