Citation Nr: 21003273 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-19 513 DATE: January 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than July 5, 2017 for the award of service connection for tinnitus is denied. Entitlement to an effective date earlier than July 5, 2017 for the award of a 10 percent disability rating for hammer toe, left 5th toe, hallux valgus 1st metatarsophalangeal joint and arthritis (left foot hammer toes) is denied. Entitlement to an effective date earlier than July 5, 2017 for the award of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to an increased rating in excess of 10 percent for left foot hammer toes is denied. Entitlement to an initial rating in excess of 70 percent for PTSD is denied. Entitlement to a temporary total rating based on hospitalization over 21 days for service-connected PTSD is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a hearing loss disability. 2. The Department of Veterans Affairs (VA) received the Veteran’s claim of service connection for tinnitus on July 5, 2017; no informal or formal claim was received prior to this date. 3. The Veteran was granted service connection for left foot hammer toes in a July 2014 rating decision awarding a noncompensable rating. 4. A claim of increased rating for left foot hammer toes filed in February 2015 was denied in a May 2015 rating decision; no notice of disagreement as to the disability evaluation was received within one year of the rating decision. 5. The Veteran filed a claim for an increased rating for left foot hammer toes on July 5, 2017, and it was not factually ascertainable that an increase in severity of the Veteran’s left foot hammer toes had occurred in the year prior to that date. 6. The Veteran filed a claim of service connection for PTSD in October 2014, which was denied by a November 2014 rating decision; no notice of disagreement as to service connection was received within one year of that rating decision. 7. On July 5, 2017, the Veteran filed a claim to reopen service connection for PTSD. 8. For the entire period on appeal, the Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum schedular rating permitting for tinnitus. 9. For the entire period on appeal, the Veteran’s left foot hammer toes have been no more than moderate in severity. 10. For the period prior to July 16, 2018 and after November 17, 2018, the severity, frequency, and duration of the Veteran’s symptoms for PTSD did not more closely approximate total occupational and social impairment. 11. Due in part to his service-connected PTSD, the Veteran was an inpatient at a VA domiciliary from July 16, 2018 to November 17, 2018. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for an effective date earlier than July 5, 2017, for the award of service connection for tinnitus have not been satisfied. 38 U.S.C. § 5110, 38 C.F.R. § 3.400. 3. The criteria for an effective date earlier than July 5, 2017 for the award of a 10 percent disability rating for left foot hammer toe have not been satisfied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date earlier than July 5, 2017 for the award of service connection for PTSD have not been satisfied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an initial rating in excess of 10 percent for service-connected tinnitus have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. 6. The criteria for a rating in excess of 10 percent for service-connected left foot hammer toes have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5284-5282. 7. The criteria for an initial rating in excess of 70 percent for service-connected PTSD have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 8. The criteria for a temporary total rating based on hospitalization have been satisfied for the period from July 16, 2018 to November 17, 2018. 38 C.F.R. § 4.29. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1977 to July 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision issued by a VA Regional Office (RO). A total disability rating based on individual unemployability (TDIU) was granted by a January 2020 rating decision. In January 2021, the Veteran’s attorney requested that the RO review the effective date assigned for that award under VA’s modernized review system. See Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA); see also 38 C.F.R. § 3.2500(a) (addressing review of decisions). As the Veteran’s attorney has requested review of that decision under the AMA, and this decision deals with appeals from VA’s prior review system, known as the Legacy appeals system, the Board will not address the issue of entitlement to an earlier effective date for the award of TDIU. See Robinson v. Mansfield, 21 Vet. App. 545, 554 (2008) (explaining that the Board may assume that “an experienced attorney in veteran’s law[ ] says what he means and means what he says.”). Service Connection for Bilateral Hearing Loss Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system which includes sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 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 Veteran’s hearing was tested during an April 2018 VA examination and the results did not reflect a hearing loss disability for VA purposes in either ear. No medical evidence establishes a current hearing loss disability. The Veteran has some medical education and experience as he was a combat medic while in service. While he essentially alleges that he has a hearing loss disability, he has not indicated that he is competent to perform or did perform any diagnostic testing to establish hearing loss disability for VA purposes. Absent a current disability, service connection must be denied. Effective Dates Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 1. Tinnitus By way of history, the Veteran filed an intent to file a claim for compensation in July 5, 2017. In March 2018, he filed a claim of service connection for hearing problems. The RO, in an August 2018 rating decision, granted service connection for tinnitus effective July 5, 2017. The Veteran disagreed with the effective date awarded, and this appeal followed. Reviewing the evidence of record, the Board concludes the proper effective date for the grant of service connection for tinnitus is July 5, 2017, the date of the intent to file a claim for compensation. The evidence of record does not reflect any claim or communication prior to July 5, 2017 regarding an intent to seek service connection for tinnitus. Accordingly, the Board finds that July 5, 2017 is the proper effective date for the grant of service connection for tinnitus, as that is the date of receipt of the intent to file a claim for compensation. As such, the appeal must be denied. 2. Left Foot Hammer Toes The Veteran was awarded service connection for left foot hammer toe by a July 2014 rating decision which assigned a noncompensable evaluation effective April 9, 2014, the date of claim. In October 2014, the Veteran filed a claim seeking a higher rating for service-connected left foot hammer toe. A November 2014 rating decision continued the noncompensable rating. In February 2015, the Veteran filed another claim seeking a higher rating for his left foot hammer toe. The RO, in a May 2015 rating decision, denied the claim and continued the noncompensable rating. The Veteran, in June 2015, filed another increased rating claim. A June 2015 rating decision continued the noncompensable rating. The Veteran did not disagree with that decision and it became final. 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103 (2014). Thereafter, on July 5, 2017, the Veteran filed an intent to file a claim, followed by a formal application in March 2018. An August 2018 rating decision increased the Veteran’s rating to 10 percent, effective July 5, 2017. The record does not reflect that there was any pending, unadjudicated claim for an increase for left foot hammer toe between the June 2015 rating decision and the July 5, 2017 intent to file a claim. Having established July 5, 2017, as the date of the increased rating claim, the Veteran could still potentially qualify for an earlier effective date if the evidence establishes that the increase in disability to 10 percent occurred in the year prior to the July 2017 intent to file claim. 38 C.F.R. § 3.400(o)(2). However, in reviewing the record, the Board finds that it was not factually ascertainable that an increase in his disability occurred in the year prior to July 5, 2017. Based on the foregoing, the Board finds that a date earlier than July 5, 2017 may not be assigned for the award of a compensable rating for the Veteran’s left foot hammer toe. The June 2015 rating decision that denied a higher rating became final when the Veteran failed to perfect an appeal with a timely notice of disagreement within one year of that decision. The earliest date the Veteran filed a claim for an increased rating after the June 2015 rating decision, was in July 5, 2017 with the intent to file a claim. The evidence does not show a worsening in the condition occurring in the year preceding July 5, 2017. Accordingly, an effective date earlier than July 5, 2017 for the award of a 10 percent rating for the Veteran’s left foot hammer toe is not warranted, and the appeal must be denied. 3. PTSD By way of history, the Veteran’s earliest claim of service connection for PTSD was filed in April 2014, which the RO denied in a July 2014 rating decision. The Veteran filed another claim of service connection for PTSD in October 2014, which was again denied by a November 2014 rating decision. This decision was not appealed and became final. 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103 (2014). Thereafter, there was no claim received relating to service connection for PTSD until a July 5, 2017 intent to file a claim. A formal application for benefits relating to military sexual trauma, depression, anxiety, and PTSD was received in March 2018. Service connection for PTSD was granted in an August 2018 rating decision, granting benefits as effective July 5, 2017, the date of the intent to file a claim. The Veteran disagreed with the effective date awarded, and this appeal followed. Reviewing the evidence of record, the Board concludes the proper effective date for the grant of service connection for PTSD is July 5, 2017, the date of the intent to file a claim. The evidence of record does not reflect any claim or communication between the November 2014 rating decision and the July 5, 2017 intent to file a claim regarding an intent to seek service connection for PTSD. Accordingly, the Board finds that July 5, 2017 is the proper effective date for the grant of service connection for PTSD, as that is the date of receipt of the intent to file a claim. As such, the appeal must be denied. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Tinnitus By way of history, in July 2017, the Veteran filed an intent to file claim and then later submitted a formal application for benefits in March 2018 for his hearing problems. An August 2018 rating decision granted service connection for tinnitus with a 10 percent rating effective July 2017, the date the claim. Thereafter, the Veteran sought a higher rating and this appeal followed. The Veteran seeks a higher rating for his service-connected tinnitus currently rated 10 percent disabling under 38 C.F.R. § 4.87, Diagnostic Code 6260. However, this is the maximum schedular rating for this disability and there is no other appropriate diagnostic code by which a higher rating could be awarded. Thus, for the duration of the appeal period, an initial rating in excess of 10 percent for tinnitus is not warranted and the claim must be denied. 2. Left Foot Hammer Toes By way of history, in July 2017, the Veteran filed an intent to file claim and then later submitted a formal application for increased rating in March 2018 for his left foot hammer toe. An August 2018 rating decision increased the Veteran’s rating to 10 percent rating for his left foot hammer toe effective July 2017, the date of claim. Thereafter, the Veteran sought a higher rating and this appeal followed. The Veteran contends that he is entitled to a higher rating for his service-connected left foot hammer toe. The Veteran’s left foot hammer toe is rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5284-5282, for other foot injuries and hammer toes. A disability listed under the diagnostic codes must be rated under the diagnostic code that specifically pertains to it. Copeland v. MacDonald, 27 Vet. App. 333, 337 (2015). With an unlisted disability, it may be rated by analogy to a closely related disease or injury with a closely related disease or injury demonstrating similar affected function, anatomical location, and symptomatology. Reviewing the evidence, the Veteran presented for a VA foot examination in April 2018. The examiner noted that the Veteran had bilateral hammer toes on the second, third, fourth, and little toes. He had mild symptoms on the right foot and moderate symptoms on the left foot. The examiner noted that the Veteran had mild or moderate symptoms on his left side for hallux valgus with no surgical procedures. The examiner further noted other foot injuries of mild severity in the left side related to his hammer toes. The Veteran underwent another VA foot examination in January 2020. The examiner noted that the Veteran had bilateral hammer toes on the second, third, fourth, and little toes. He also had mild or moderate symptoms on his left side for hallux valgus with no surgical procedures. The examiner noted that the Veteran had other foot injuries in the left side with moderate severity. Under Diagnostic Code 5282, a noncompensable rating is warranted for hammer toes of single toes. A maximum 10 percent rating is warranted for hammer toes of all toes, unilateral, without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282. As the Veteran is in receipt of the highest schedular rating for hammer toes, there is no basis to award a higher rating under this diagnostic code. Under Diagnostic Code 5280, a maximum 10 percent rating is warranted with severe hallux valgus that is equivalent to amputation of the great toe or if the hallux valgus has been operated on with resection of the metatarsal head. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Here, the Veteran’s hallux valgus is described as moderate or less in severity with no surgical procedures having been performed. Thus, a separate rating for hallux valgus is not warranted. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate foot injuries. A 20 percent rating is warranted for moderately severe foot injuries. A 30 percent rating is warranted for severe foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Severe” means “of a great degree”. See www.merriam-webster.com/dictionary/severe. A separate rating for other foot injuries cannot be assigned as such a rating would include symptoms forming the basis for the current rating based on hammer toes, which would result in impermissible pyramiding. 38 C.F.R. § 4.14. If a higher rating were warranted under Diagnostic Code 5284, that rating could be assigned and the current rating under the diagnostic code related to hammer toes could be discontinued. However, that would require a showing of moderately severe disability. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The most probative evidence establishes that the Veteran’s left foot disability is at most moderate in severity. Hence, a rating in excess of 10 percent could not be assigned under Diagnostic Code 5284. Given the above, a rating in excess of 10 percent for the Veteran’s left foot hammer toes is denied. 3. PTSD By way of history, in July 2017, the Veteran filed an intent to file claim and then later submitted a formal application for benefits in March 2018 for his psychiatric disorder. An August 2018 rating decision granted service connection for PTSD with a 70 percent rating effective July 2017, the date of claim. Thereafter, the Veteran sought a higher rating and this appeal followed. The Veteran’s PTSD is evaluated under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Initially, the Board notes that a total disability rating (100 percent) will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. In this case, the Veteran was admitted to a VA domiciliary for his service-connected PTSD, lack of housing, and marijuana use from July 16, 2018 to November 17, 2018. Domiciliary care means the furnishing of: (1) A temporary home to a veteran, embracing the furnishing of shelter, food, clothing and other comforts of home, including necessary medical services; or (2) A day hospital program consisting of intensive supervised rehabilitation and treatment provided in a therapeutic residential setting for residents with mental health or substance use disorders, and co-occurring medical or psychosocial needs such as homelessness and unemployment. As this is considered a day hospital program under the second definition above, a veteran would be eligible for benefits under 38 C.F.R. § 4.29 if living in a domiciliary program for purposes of treating a service-connected condition. As the Veteran’s admission to the domiciliary was in part due to his service-connected PTSD, the Board finds that a temporary total rating for PTSD is warranted during his stay at the domiciliary from July 16, 2018 to November 17, 2018. Regarding the rating outside of the above period, the most probative evidence comes from a VA examination report from August 2018. The examiner opined that the Veteran’s PTSD approximated occupational and social impairment with reduced reliability and productivity (the criteria for a 50 percent rating). The examiner noted that the Veteran’s symptoms manifest in depressed mood; anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was afforded another VA examination in January 2020. During the examination, the examiner opined that the Veteran’s PTSD approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood (the criteria for a 70 percent rating). The examiner noted that the Veteran’s symptoms manifest in depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impaired judgment; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work like setting; and inability to establish and maintain effective relationships. The examiner’s opinions are based on examination and interview of the Veteran as well as his medical history. His lay statements were taken into account by the examiners when they determined total occupational and social impairment was not present. Treatment records during the periods at issue do not show a disability picture worse than found on examination. For the period prior to July 16, 2018 and the period after November 17, 2018, the Board finds that the Veteran’s PTSD has been manifested by no more than occupational and social impairment with deficiencies in most areas, which more nearly approximates the criteria for the current 70 percent disability rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. During the VA examinations, the Veteran’s reported symptoms did not rise to the level warranting to 100 percent rating as there were no evidence showing 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 and place; memory loss for names of close relatives, own occupation, or own name. In addition, the evidence does not otherwise show total occupational and social impairment due to PTSD. (Continued on the next page.) In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating for the period prior to July 16, 2018 and the period after November 17, 2018. Thus, the criteria for a 100 percent or higher rating are not met and the appeal must be denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.