Citation Nr: 18160766 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-52 569 DATE: December 27, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Subject to the laws and regulations governing the payment of monetary benefits, entitlement to a 100 percent rating for major depressive disorder for the entire initial rating period is granted. Entitlement to an effective date prior to August 27, 2013 for grant of service connection for bilateral hearing loss is denied. Entitlement to an effective date prior to August 27, 2013 for grant of service connection for major depressive disorder is denied. Entitlement to an effective date prior to August 27, 2013 for grant of service connection for tinnitus is denied. REMANDED Entitlement to service connection for sleep apnea, to include secondary to major depressive disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding of an in-service onset of diabetes or that it manifested to a compensable degree within one year of separation from service. 2. The Veteran’s bilateral hearing loss was manifested no worse than Level I in the right ear and Level I in the left ear. 3. The Veteran is in receipt of a 10 percent rating for tinnitus, which is the maximum schedular rating under the applicable rating criteria, and the rating schedule is adequate to evaluate such a disability. 4. For the entire initial rating period, the signs and symptoms of the Veteran’s major depressive disorder more nearly approximates total occupational and social impairment. 5. The Veteran’s claim for entitlement to service connection for tinnitus, bilateral hearing loss, and major depressive disorder was received by VA on August 27, 2014, pursuant to the Fully Developed Claim Program. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2018). 3. There is no legal basis for the assignment in excess of 10 percent for tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (b)(1), 4.3, 4.7, 4.87, Diagnostic Code 6260 (2018); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) 4. The criteria for entitlement to a 100 percent rating for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). 5. The criteria for entitlement to an effective date prior to August 27, 2013 for grants of service connection for tinnitus, bilateral hearing loss, and major depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S Army National Guard from July 1976 to October 1976, and in the U.S. Air Force from December 1976 to October 1978. This appeal to the Board of Veteran’s Appeals (Board) arose from a March 2015 rating decision by Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has perfected a timely appeal. See December 2015 Notice of Disagreement; October 2016 Statement of the Case (SOC); October 2016 Substantive Appeal (VA Form 9). Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §1112; 38 C.F.R. §3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. §3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. §3.309(a). When there is an approximate balance of positive and negative evidence regarding any material issues, the Secretary shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for diabetes mellitus, type II. The Veteran contends that his diabetes is related to his military service. The evidence of the record establishes that the Veteran has a current diagnosis of diabetes. A VA treatment record from August 2016 reflects that the Veteran has had diabetes since 2000 and is currently receiving treatment for his condition. Regarding an in-service event or injury, the Veteran’s service treatment records reveal no complaint, diagnosis, or treatment of diabetes. On his August 1978 separation examination, the blood test was negative for sugar. There is no evidence that indicates that his diabetes manifested to a compensable degree within one year after separation from service. The Veteran separated from service in 1978, and it was diagnosed in 2000, 22 years after separation from service. His DD-214 indicates that he did not have any foreign service; thus, presumptive service connection under 38 C.F.R. § 3.307 for herbicide exposure is not applicable in this case. Since there is no evidence establishing an in-serve event or injury, the Board finds that service connection cannot be warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 2. Entitlement to an initial compensable rating for bilateral hearing loss. The Veteran seeks a compensable rating for his service-connected bilateral hearing loss, rated noncompensable from August 27, 2013. The Veteran was afforded a VA examination for his hearing loss in March 2015. The Veteran’s Maryland CNC Word List speech recognition scores were 98 percent in both ears. The Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 40 65 LEFT 20 20 20 40 50 Puretone threshold averages were 35 dB for the right ear and 32.5 dB for the left ear. The Veteran noted that his hearing loss causes functional impairment, specifically resulting in difficulty in understanding speech in noise, groups, and at short distances. Under applicable laws and regulations, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness. Tables VI and VII, as set forth following 38 C.F.R. § 4.85, are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels (dB) or more, Table VI or Table Via is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). Applying the March 2015 VA examination results to Table VI results in Roman Numeral I for the right ear and I for the left ear. See 38 C.F.R. § 4.85. Applying these values to Table VII demonstrates that the rating for the Veteran’s bilateral hearing loss is 0 percent. Based on the evidence of the record, the Board finds that the evidence establishes that the Veteran’s current condition does not warrant a higher rating under 38 C.F.R §4.485. The Board acknowledges the Veteran’s assertions of how his bilateral hearing loss causes him some degree of functional impairment. However, all aspects of his hearing disability are encompassed by the assigned schedular rating. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 3. Entitlement to an initial rating in excess of 10 percent for tinnitus. The Veteran is seeking a higher rating for his service-connected tinnitus, rated at 10 percent disabling, effective August 27, 2013. Tinnitus is rated under Diagnostic Code 6260. See 38 C.F.R. § 4.87. Note 2 to DC 6260 specifically provides that only a single evaluation is to be assigned, whether the sound is perceived as being in one ear, both ears, or in the head. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the current version of DC 6260 specifically prohibits a schedular evaluation in excess of a single 10 percent rating for tinnitus, however perceived, i.e., in one ear, both ears or in the head, an evaluation in excess of 10 percent for recurrent tinnitus is not warranted as a matter of law in this case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus effective to the date of claim. 38 C.F.R. § 4.87, Diagnostic Code 6260. His tinnitus causes no functional impairment based on the March 2015 VA examination. As there is no legal basis upon which to award a higher schedular rating, the Veteran's claim for entitlement to a higher rating must be denied. See Sabonis, supra. 4. Entitlement to an initial rating in excess of 70 percent for major depressive disorder. The Veteran is seeking a higher rating for his service-connected major depressive disorder, which is currently rated at 70 percent disabling effective August 27, 2013, in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 100 percent evaluation is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Turning now to the evidence of the record, in the Veteran’s service treatment records, it was noted on his August 1978 separation examination that the Veteran exhibited depression and excessive worrying. On the March 2015 VA examination, the Veteran was diagnosed with major depressive disorder, and cannabis use disorder, noted to be in remission. He was noted to have occupational and social impairment with reduced reliability and productivity. All occupational and social impairment is attributable to major depressive disorder. It was noted that the Veteran has been married several times and now lives in a camper near his mother’s home. After being discharged from the military, he worked a variety of jobs over the years. He last worked in 2012. He is diabetic which resulted in amputation of his toes. He was no longer able to work. The Veteran first sought mental health treatment after being discharged from the military. He was court-ordered for mental health treatment for indecent exposure. He was in treatment for about 2 years. He is not currently receiving mental health treatment. The Veteran’s symptoms were noted as follows: depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner noted that the Veteran did not appear to pose any threat of danger or injury to self or others. The examiner also stated that the Veteran required mental health treatment for his major depressive disorder. In a private medical evaluation conducted on October 2017 by Dr. W, the Veteran was diagnosed with major depressive disorder, recurrent, severe with anxious distress features. The Veteran was noted as having occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. The Veteran denied having social and family problems. Since his separation from the military, the Veteran reports ongoing social anxiety, panic attacks, irritability, isolation and avoidance of crowds. Since the military, the Veteran worked as a maintenance man and truck driver, which allowed him to work mostly unsupervised and away from people. He says that he stopped working in 2014 primarily due to his depression and inability to work with people. The doctor indicated that the mental health records confirms that the Veteran has increased symptoms of major depression with anxious distress features which stem from his military service uninterrupted to the present. The Veteran has a history of taking antidepressants and sleep medications for treatment. He also began self-medicating with drugs and alcohol after his separation from service. The Veteran reported stressors and sentinel events such as his four divorces, estranged relationships with four out of six of his children, sex offenses, financial stress due to disabling service connected mental health problems and associated triple heart bypass. The Veteran’s symptoms were noted as follows: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, disturbances in motivation and mood, difficulty in establishing and maintaining effective and social relationships, difficulty adapting to stressful circumstances, including work or worklike setting, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, persistent delusions or hallucinations, grossly inappropriate behavior, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Regarding personal hygiene, it was noted that the Veteran will not shower or groom himself for five to seven days, admitting that he will not shower for several weeks during a depressive episode. He does not allow people in his camper due to the mess. Regarding the Veteran’s daily activities, he wakes up tired, irritable, lethargic, and unmotivated due to a poor night’s sleep. It was the doctor’s opinion that the Veteran’s symptoms were so severe to prevent him from obtaining any employment. In a December 2017 opinion from a vocationalist consultant, Dr. B, after reviewing the medical evidence, she opined that his mental disorder symptoms are severe affect his occupational impairment and is totally and permanently precluded from performing work at a substantial gainful level due to his major depressive disorder. She also cited medical evidence regarding how the symptoms the Veteran was exhibiting affected his ability to work. After a thorough review of the evidence, the Board finds that the evidence establishes that the Veteran’s mental disorder symptoms manifested to the level of severity encompassed by the 100 percent rating criteria. The Board notes that the Veteran’s private doctor reviewed the Veteran’s claims file and evidence-based research. From that, he concluded that the Veteran’s symptoms have been extremely severe enough to prohibit him from working throughout the entire initial rating period. The March 2015 VA examiner note that all occupational and social impairment was due to his major depressive disorder. Of particular significance are the Veteran’s symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, panic attacks more than once per week, near and continuous panic and depression affecting the ability to function independently, appropriately, and effectively, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired judgment, impaired impulse control, suicidal ideation, neglect of personal appearance and hygiene, persistent delusions or hallucinations. Two doctors concluded that he is totally and permanently disabled due to his symptoms. Thus, the Board finds that the Veteran’s symptoms more nearly approximate the criteria contemplated by the 100 percent rating criteria. The Veteran, through his representative, also indicated that his mental disorder, and other service-connected disabilities bilateral hearing loss and tinnitus, precluded him from sustaining and obtaining gainful employment, thus, indicating a claim to entitlement to total disability based on individual unemployability (TDIU) based on Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has assigned an initial rating of 100 percent for the Veteran’s major depressive disorder. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). The receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily always moot the issue of entitlement to a TDIU, however, because a TDIU rating may still form the basis for the assignment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s) (2012). See Bradley v. Peake, 22 Vet. App. 280 (2008). SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability and VA finds that TDIU is warranted based solely on the disabilities other than the disability rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); See also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Here, the Veteran is service-connected for tinnitus, rated at 10 percent disabling, and bilateral hearing loss, rated noncompensable. The Veteran does not have any additional disabilities that are independently ratable at 60 percent or more. Thus, the Board will not infer the issue of entitlement to SMC. Effective Date Unless specifically provided otherwise, the effective date of an award of disability compensation based on an original claim shall be date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from service; otherwise, the effective date of an award of disability compensation will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(2)(i)-(ii). Effective dates for service connection based on an original claim generally are not based on the date the condition began and cannot be any earlier than date of receipt of claim. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that “the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA”). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello, supra. 5. Entitlement to an effective date prior to August 27, 2013 for grants of service connection for bilateral hearing loss, tinnitus, and major depressive disorder. The Veteran seeks an earlier effective date for grants of service connection for tinnitus, bilateral hearing loss, and major depressive disorder. In August 2014, the Veteran filed claims for compensation for sleep apnea, diabetes, tinnitus, depression, and bilateral hearing loss under the Fully Developed Claims program. In the March 2015 rating decision, the RO granted service connection for the disabilities, assigning the effective date of August 27, 2013, one year prior to the receipt date of the Veteran’s claims for compensation. The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America's Veterans Act), Public Law 112-154, Section 506, 126 Stat. 1165 was signed into law on August 6, 2012. Section 506 of the Act amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013 through August 5, 2015. Under the Act, an effective date of up to one year prior to submission of the claim may be assigned when evidence demonstrates that the disability existed for one year prior to submission of the claim. See 38 U.S.C. §5110 (b)(2)(A). In this matter, the Veteran’s fully developed claim was received on August 27, 2014, within the time period stated in the Act. The RO assigned an effective date of August 23, 2013 in accordance with the Act. There is no evidence of formal or informal claims submitted prior to August 2014. Therefore, the Board finds that an effective date earlier than August 27, 2013 for the grants of service connection for tinnitus, bilateral hearing loss, and major depressive disorder is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include secondary to major depressive disorder is remanded. After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran’s claim of entitlement to service connection for sleep apnea, to include secondary to major depressive disorder. The Veteran, through his representative, contends that his sleep apnea is due to his major depressive disorder. He has submitted evidence of a study that found that people with depression had a higher prevalence of sleep apnea diagnosis. The Veteran was diagnosed with sleep apnea in April 2016. The Veteran is service-connected for major depressive disorder. Thus, the Board finds that an examination and opinion is necessary to determine if the Veteran’s sleep apnea is secondary to his major depressive disorder. The matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his sleep apnea. The RO/AMC should secure any necessary authorizations. 2. Additionally, all updated VA treatment records should be obtained. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea condition. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The claims file should be made available to the examiner for review. After record review and examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries: (a) Does the Veteran have a current diagnosis of sleep apnea? (b) If the answer to (a) is yes, is it at least as likely as not (a 50 percent or greater probability) that his sleep apnea is due to, or aggravated (i.e., has progressed at an abnormally high rate due to) the service-connected major depressive disorder? If a sleep apnea disability shown is deemed not to be due to, or aggravated by the service-connected major depressive disorder, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. (Continued on the next page)   The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Syesa Middleton, Associate Counsel