Citation Nr: 20003299 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-36 861 DATE: January 14, 2020 ORDER Entitlement to an earlier effective date of February 5, 2016 for the assignment of a 70 percent disability rating for service-connected bilateral hearing loss is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) from September 21, 2012 is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss was manifested by worsening hearing acuity warranting a 70 percent disability rating beginning February 5, 2016, when the VA first received notice of his worsening hearing acuity. 2. The evidence of record demonstrates that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation from September 21, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date of February 5, 2016 for the assignment of a 70 percent disability rating for service-connected bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5110, 5107; 38 C.F.R. §§ 4.3, 3.400, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to a TDIU from September 21, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from April 1969 to October 1970 and from August 1973 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2014 and January 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The current claims on appeal were previously denied by the Board in a November 2018 decision which the Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (CAVC). CAVC granted a Joint Motion for Partial Remand in August 2019. The claims were remanded to the Board for further adjudication in accordance with CAVC’s order. Effective Dates The effective date of an award based on a claim for increase of compensation “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). VA regulations provide that the effective date for increases shall be the “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (o)(1). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of the claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of receipt of the claim. The law provides one 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. 38 U.S.C. § 5110 (b)(2). The regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of doubt is afforded the claimant. 38 U.S.C. § 5107 (b). 1. Entitlement to an earlier effective date of February 5, 2016 for the assignment of a 70 percent disability rating for service-connected bilateral hearing loss The Veteran contends that he is entitled to a 70 percent evaluation for bilateral hearing loss effective January 29, 2016, when he stated that his hearing had gotten significantly worse. See Notice of Disagreement dated January 2017. Here, the VA received the Veteran’s claim for an increased rating for bilateral hearing loss on November 7, 2016. A VA examination was conducted on November 30, 2016, which showed worsening of his hearing loss warranting an evaluation of 70 percent. In a January 2017 rating decision, the Veteran was granted an increased evaluation for his hearing loss effective November 7, 2016, the date of receipt of the claim. However, the RO failed to consider the Veteran’s February 5, 2016 statement of worsening hearing acuity and whether the Veteran is competent to testify to those matters within his personal knowledge and observation, such as perceived increase in symptoms of bilateral hearing loss. The Board finds that the Veteran is competent to testify to his increased hearing loss and the evidence of record supports the Veteran’s February 2016 statement regarding worsening hearing acuity. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). A review of the medical evidence of record shows that the Veteran complained of problems with his left ear during an April 2016 primary care appointment. Furthermore, the November 2016 VA examination supported significant worsening of the Veteran’s hearing acuity. The prior VA examination conducted in April 2012, showed that the Veteran’s hearing loss warranted an evaluation of only 20 percent. This significant increase indicates the high probability that the Veteran’s hearing loss worsened within the year prior to November 7, 2016. Additionally, the Board finds that entitlement to an effective date prior to November 7, 2016 should not be denied simply because an audiological evaluation was not conducted during the year prior, or when the Veteran first indicated that his hearing loss had worsened. The effective date for an increased rating should be the earliest date as of which it is factually ascertainable that an increase in disability had occurred and should not be assigned mechanically based on the date of a diagnosis. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); see also Swain v. McDonald, 27 Vet. App. 219, 224 (2019). Accordingly, the Board concludes that the Veteran is entitled to an earlier effective date of February 5, 2016 for the assignment of a 70 percent disability rating for his service-connected bilateral hearing loss. 2. Entitlement to a TDIU from September 21, 2012 The Veteran contends that he has not worked since 2003 and he is unable to work due to his service-connected disabilities. A claim for a TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, App. 447 (2009). Here, the RO raised potential entitlement to a TDIU after the issuance of an August 2013 rating decision granting service connection for ischemic heart disease, posttraumatic stress disorder (PTSD), and residuals of inguinal hernia. The effective date for the award of service connection for ischemic heart disease was September 21, 2012 and September 12, 2012 for PTSD and residuals of inguinal hernia, the respective date of receipt of the claims. As the record raises a question of whether the Veteran is unemployable due to his service-connected disabilities, a claim for a TDIU is properly before the Board and has been pending since September 12, 2012. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). However, in cases where the effects of service-connected and nonservice-connected conditions cannot be distinguished, symptoms of impairment should be attributed to the service-connected condition when considering functional capacity. Mittleider v. West, 11 Vet. App. 181 (1998). Additionally, a Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Also, in a recent precedential decision issued by CAVC, they offered guidance in defining “unable to secure and follow a substantially gainful occupation.” In Ray v. Wilkie, 31 Vet. App. 58 (2019), CAVC found that 38 C.F.R. § 4.16 (b) has two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. From September 21, 2012, the Veteran has established service connection for ischemic heart disease rated 60 percent disabling, bilateral hearing loss rated 20 percent disabling, PTSD rated 50 percent disabling, tinnitus rated 10 percent disabling, and residuals of inguinal hernia rated noncompensable. The Veteran’s combined rating for compensation purposes was 90 percent effective September 21, 2012. 38 C.F.R. § 4.25. Therefore, the Veteran met the schedular rating criteria for TDIU beginning September 21, 2012. 38 C.F.R. § 4.16 (a). The remaining inquiry is whether he was unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. The evidence of record shows that the Veteran completed 11th grade and primarily worked in manufacturing positions after separating from the military. He last worked full-time in 2003 as a spot welder. In his November 2016 Application for Increased Compensation Based on Unemployability, he indicated that he was unable to secure or follow substantially gainful employment due to his lungs, depression, and heart condition. The Board notes that the Veteran is not service-connected for a lung disability. Medical evidence relevant to his unemployability includes an April 2012 VA examination for service-connected bilateral hearing loss. The examiner determined that the Veteran’s hearing loss impacts his ability to work, as he described difficulty understanding speech in adverse listening conditions and reported difficulty understanding conversations on the phone. The Veteran underwent a VA examination for his ischemic heart disease in July 2013. The examiner opined that the Veteran’ s lowest level of activity at which the Veteran reported symptoms is 1-3 metabolic equivalent (METs), which is consistent with activities such as eating, dressing, taking a shower, or slow walking for 1-2 blocks. However, the examiner noted that the Veteran’s exercise tolerance is very limited due to shortness of breath that seems more due to his pulmonary problems than cardiac. In August 2013, the VA examiner offered an addendum, clarifying that because of the Veteran’s nonservice-connected lung disease, he is unable to exercise enough to estimate how much exercise his cardiac condition would allow if he had no lung disease. The examiner estimated that the Veteran’s METs level is 3-5 for his heart alone, which is consistent with activities such as light yard work, mowing the lawn, and brisk walking. During a July 2013 VA examination for the Veteran’s PTSD, the examiner opined that the Veteran’s PTSD is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Board also notes that the Veteran underwent VA examinations for ischemic heart disease, bilateral hearing loss, and depression after November 7, 2016, when he was awarded a total disability evaluation. However, pursuant to McGrath v. Gober, 14 Vet. App. 28, 35 (2000), in an original claim for benefits, the date the evidence is submitted or received is irrelevant when considering the effective date of an award; the date to which the evidence refers must be considered. Therefore, the Board finds that the evidence contained in these VA examinations is pertinent to whether the Veteran is unemployable due to his service-connected disabilities. The November 2016 VA examiner opined that the Veteran’s hearing loss impacts his ability to work as he cannot hear anything without hearing aids. The February 2017 VA heart conditions examiner opined that the Veteran’s heart condition impacts his ability to work as he is incapable of employment from an aerobic standpoint because he can only walk 50 feet, he has dyspnea, and uses oxygen. The examiner determined the Veteran’s METs level to be 1-3 and found that his limitations are due to multiple medical conditions, but it is not possible to accurately estimate the percent of METs limitation attributable to each condition. As the effects of the Veteran’s service-connected heart condition cannot be distinguished from his nonservice-connected lung condition, the symptoms of impairment are attributed to the service-connected heart condition. Mittleider, 11 Vet. App. at 182. Most recently, the Veteran underwent a VA examination for his service-connected PTSD in January 2019, and the examiner opined that the Veteran’s symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Based on the foregoing, the Board finds that the totality of the evidence supports a finding that the Veteran’s service-connected disabilities render him unemployable. Specifically, the evidence suggests that due to the Veteran’s limited education and skill set, he is both physically and mentally incapable of securing or maintaining employment in the manufacturing industry. A manufacturing job would require the Veteran to use hard labor skills which he is unable to physically perform, primarily due to his ischemic heart disease. The medical evidence of record suggests that his level of METs is substantially reduced due to his heart condition. The Veteran has difficulty doing menial tasks such as eating, dressing, and taking a shower, making it highly unlikely that he would be able to perform the skills necessary for a manufacturing job. Furthermore, the Veteran’s severe bilateral hearing loss also unfavorably impacts the Veteran’s ability to hear in adverse listening conditions or phone conversations making employment difficult as well. As for the Veteran’s mental capacity, his service-connected PTSD makes it difficult for the Veteran to maintain employment as the medical evidence suggests that he struggles to engage with occupational tasks necessary to secure or maintain employment in the manufacturing industry. Therefore, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Accordingly, a TDIU is warranted from September 21, 2012. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hartford, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.