Citation Nr: 20004894 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 18-37 077 DATE: January 22, 2020 ORDER Service connection for bilateral hearing loss is granted. Entitlement to an effective date earlier than May 30, 2017, for a grant of service connection for tinnitus is denied. Entitlement to a 70 percent rating for recurrent major depressive disorder with alcohol/drug use disorder from October 6, 2015, but no earlier, is granted. Entitlement to a rating in excess of 70 percent for recurrent major depressive disorder recurrent with alcohol/drug use disorder for the period beginning October 6, 2015 is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to acoustic trauma in service given the nature of his duties therein; bilateral hearing loss disability as defined by regulation was demonstrated by examination in June 2017; and there is competent evidence of record linking bilateral hearing loss to the presumed in-service acoustic trauma. 2. Review of the record dated prior to May 30, 2017 does not reveal a claim for service connection for tinnitus on a standard form prescribed by the Secretary. 3. For the period beginning October 6, 2015, recurrent major depressive disorder with alcohol/drug use disorder has resulted in occupational and social impairment with deficiencies in most areas and the inability to establish and maintain effective relationships 4. For the period prior to October 6, 2015, recurrent major depressive disorder with alcohol/drug use disorder did not result in occupational and social impairment with deficiencies in most areas and the inability to establish and maintain effective relationships. 5. For the period beginning October 6, 2015, recurrent major depressive disorder with alcohol/drug use disorder has not resulted in total occupational and social impairment. 6. The 10 percent rating assigned for tinnitus is the maximum rating authorized under 38 C.F.R. § 4.87 Diagnostic Code (DC) 6260. 7. Service connection has been granted for recurrent major depressive disorder with alcohol/drug use disorder rated as 70 percent disabling; lumbosacral strain, rated as 20 percent disabling; and atopic dermatitis, status post internal sphincterotomy and hemorrhoidal banding, perianal abscess repair, radiculopathy of the left and right lower extremities, and tinnitus, each rated as 10 percent disabling; and status post right fifth ring fracture and residuals of frostbite of the feet, each rated noncompensable; the service connected disabilities combined to be 90 percent disabling. 8. It is at least as likely as not the Veteran is unable to obtain and/or maintain substantially gainful employment due to his service-connected psychiatric disability. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2019). 2. The legal requirements for an effective date prior to May 30, 2017, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 3. The criteria for a 70 percent for recurrent major depressive disorder with alcohol/drug use disorder from October 6, 2015, but no earlier, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, DC 9411 (2019). 4. The criteria for a rating in excess of 70 percent for recurrent major depressive disorder with alcohol/drug use disorder for the period beginning October 6, 2015, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, DC 9411 (2019). 5. There is no legal basis for the assignment of a schedular evaluation higher than the current 10 percent for the Veteran’s service-connected tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, DC 6260 (2019). 6. Resolving all reasonable doubt in favor of the Veteran, the criteria for TDIU have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1969; May 1977 to February 1984; June 1997 to November 1997; and March 2003 to February 2005.   I. Service Connection for Hearing Loss A. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1141; 38 C.F.R. § § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. § §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, service connection may be established under 38 C.F.R. § § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to “chronic” diseases listed under 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws 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, 4000 Hertz 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. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). B. Analysis As the Veteran’s military occupational specialties during his periods of active service included being a light weapons infantryman and Hawk missile crew member, in-service acoustic trauma is presumed (service connection for tinnitus has been granted based on such presumed exposure.) While an April 2019 VA audiometric examination did not demonstrate hearing loss disability in either ear as defined by regulation, bilateral sensorineural hearing loss was diagnosed at this examination, and the examiner concluded that such hearing loss was at least as likely as not the result of in-service noise exposure. As such, and in light of the fact that a June 2017 VA audiometric examination did reflect speech recognition scores in each ear indicative of hearing loss disability as defined by 38 C.F.R. § 3.385, the undersigned will resolve all reasonable doubt in favor of the Veteran to find that service connection for bilateral loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. II. Earlier Effective date for Service Connection for Tinnitus A. Legal Criteria Under 38 U.S.C. § 5110(a); 38 C.F.R.§ 3.400, the effective date of an award of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, such as in the instant case.   B. Analysis On May 30, 2017, the Veteran submitted a VA Form 21-526EZ, “Application for Disability Compensation and Related Compensation Benefits,” in which he applied for service connection for tinnitus. Service connection for tinnitus was ultimately granted effective from May 30, 2017, by a July 2017 rating decision. Review of the record does not reveal a claim for service connection for tinnitus on a standard form prescribed by the Secretary prior to May 30, 2017. As set forth above, the effective date for a grant of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. As such, a finding as to when entitlement to service connection for tinnitus in this case is unnecessary insofar as, per the applicable legal criteria, an effective date earlier than the receipt of the Veteran’s May 30, 2017, VA Form 21-526EZ simply cannot be granted. III. Increased Rating for Recurrent Major Depressive Disorder with Alcohol/Drug use Disorder A. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. While the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The General Rating Formula for Mental Disorders provide for a noncompensable rating for a formally diagnosed mental condition manifested by symptoms that are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is assigned for 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; and memory loss for names of close relatives, or for the Veteran’s own occupation or name. 38 C.F.R. § 4.130. The symptoms recited in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The effective date of an increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. B. Analysis The Veteran’s service-connected recurrent major depressive disorder with alcohol/drug use disorder is rated under DC 9434. Such disability is rated under the General Rating Formula for Mental Disorders as set forth above. The rating for this disability was increased from 50 to 70 percent by a November 2016 rating decision effective from August 27, 2016. As this increase was not made effective from the date of the claim on appeal, the first matter for consideration is whether a 70 percent rating for the service-connected psychiatric disorder may be assigned prior to August 27, 2016. AB v. Brown, 6 Vet. App. 35 (1993). A 70 percent rating would be warranted for the service-connected psychiatric disorder prior to August 27, 2016, if it was shown prior to this date that the disability associated with this condition resulted in occupational and social impairment with deficiencies in most areas and the inability to establish and maintain effective relationships. In point of fact, the 70 percent rating was based on the findings from a VA psychiatric examination conducted on August 27, 2016 in which, in checklist fashion with respect to what best summarized the level of occupational and social impairment resulting from the Veteran’s service psychiatric disorder, the examiner selected “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” The pertinent evidence prior to August 27, 2016 includes reports from a VA psychiatric examination conducted on October 6, 2015 which, again in checklist fashion with respect to what best summarized the level of occupational and social impairment resulting from the Veteran’s service psychiatric disorder, the examiner also selected “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” As such, a 70 percent rating for the service-connected psychiatric disorder is warranted from October 6, 2015. 38 C.F.R. §§ 3.400, 4.130. As for whether a 70 percent rating for the service connected psychiatric disorder may be assigned prior to October 6, 2015, the examiner who conducted a VA psychiatric examination in April 2014, in checklist fashion with respect to what best summarized the level of occupational and social impairment resulting from the Veteran’s service psychiatric disorder, selected “occupational and social impairment with reduced reliability and productivity.” The preponderance of the evidence dated prior to October 6, 2015 is otherwise against a conclusion that service-connected psychiatric impairment prior to October 6, 2015 resulted in occupational and social impairment with deficiencies in most areas and the inability to establish and maintain effective relationships. As such, a rating in excess of 50 percent for the service-connected psychiatric disorder may not be assigned prior to October 6, 2015. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.130; Gilbert, 1 Vet. App. at 49. A rating in excess of 70 percent for the Veteran’s service-connected psychiatric disorder for the period beginning October 6, 2015, such would require total social and occupational impairment. Weighing against the assigment of a 100 percent rating is the fact that neither the October 2015 nor August 2016 examiner selected “total” impairment in selecting the level of occupational and social impairment resulting from the Veteran’s service-connected psychiatric disorder. Moreover, the August 2016 VA psychiatric exanimation reports noted that the Veteran reported that his relationships were “all right,” and he stated that he sees many people that he used to work with when he goes to VA treatment sessions. He also reported that he goes fishing with his grandchildren. Upon examination in August 2016, the Veteran was observed to be cooperative and engaged and he conversed appropriately. No psychomotor agitation or slowing was observed and the Veteran denied hallucinations or delusions. Given the above and in short, the undersigned finds that the preponderance of the evidence weighs against a conclusion that the Veteran’s service-connected psychiatric disorder results in total occupational and social impairment; as such, a rating in excess of 70 percent for this disability for the period beginning October 6, 2015 cannot be assigned. Id. In making the rating determinations above, the applicable rating criteria have not been considered as an exhaustive list of symptoms, but rather as examples of the type and degree of the symptoms or effects that would justify a particular rating. The undersigned has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a 70 percent rating for the service-connected disability prior to October 6, 2015 or in excess of 70 percent from that date. IV. Increased Rating for Tinnitus The current 10 percent rating assigned for tinnitus is the highest assignable rating for this disability under 38 C.F.R. § 4.87, DC 6260. In Smith v. Nicholson, the Federal Circuit held that the maximum schedular rating available for tinnitus is 10 percent. Thus, there is no legal basis upon which to award an increased rating for tinnitus on a schedular basis. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). V. TDIU A. Legal Criteria TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether Unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is “that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests “a living wage.” Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined “substantially gainful employment” as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) (“marginal employment shall not be considered substantially gainful employment”). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to her service-connected disabilities, but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). B. Analysis In addition to the grant of service connection for bilateral hearing loss in the decision above, service connection has been granted for recurrent major depressive disorder with alcohol/drug use disorder rated as 70 percent disabling; lumbosacral strain, rated as 20 percent disabling; and atopic dermatitis, status post internal sphincterotomy and hemorrhoidal banding, perianal abscess repair, radiculopathy of the left and right lower extremities, and tinnitus, each rated as 10 percent disabling; and status post right fifth ring fracture and residuals of frostbite of the feet, each rated noncompensable. The service-connected disabilities combine to be 90 percent disabling. As such, the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are met. As an initial matter, and while this determination is not binding on this adjudication, the undersigned observes that the Veteran has been awarded disability benefits from the Social Security Administration due solely to psychiatric disability. A VA Form 21-8940, “Veteran’s Application for Increased Compensation Based on Unemployability,” received in September 2019 reflects the Veteran reporting that he became too disabled to work in his position as a driver in 2006. He listed education through 4 years of high school on this application. Evidence elsewhere of record reflects that the Veteran retired as a nurse in 2006 after having interpersonal problems with co-workers. At the most recent VA psychiatric examination conducted in August 2016, the Veteran indicated his problems included verbal conflicts with others and he indicated that he stays home “a lot” due to his depressed mood. He stated that he was still retired and that he was not engaged in any side work. The Veteran reported having low energy and an inability to concentrate and described ongoing paranoid thinking including distrust of others. The examiner listed the Veteran’s manifestations as follows: a depressed mood, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including during work or a worklike setting, and an inability to establish and maintain effective relationships and impaired impulse control, such as unprovoked irritability with periods of violence. It was noted in the conclusion of the examination reports that the Veteran’s psychiatric symptoms ranged to severe in nature and continued to negatively impact his occupational functioning. Given the impairment the Veteran suffers from as a result of his service-connected psychiatric disability as set forth above, the undersigned simply cannot reasonably find that the preponderance of the evidence weighs against a conclusion that the Veteran is unable to secure or follow a substantially gainful occupation as a result of such disability. As such, and after resolving all reasonable doubt in this regard in the Veteran’s favor, entitlement to TDIU is warranted. 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Andrew Ahlberg, 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.