Citation Nr: 21065543 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-09 578 DATE: October 26, 2021 ORDER Entitlement to an earlier effective date of September 11, 2013 for the award of a rating of 70 percent for posttraumatic stress disorder (PSTD) is granted. Entitlement to an earlier effective date of September 11, 2013 for the award of a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT 1. The August 2014 rating decision never became final and the evidence shows the Veteran's PTSD warranted a higher evaluation from the date of his original claim. 2. The Veteran now meets the schedular criteria for a TDIU as of September 11, 2013 and the evidence indicates he was unable to maintain gainful employment due to his service-connected disabilities from that time. 3. The Veteran does not have bilateral hearing loss that was incurred in or due to his time in service or that is proximately due to any of his service-connected disabilities. CONCLUSION OF LAW 1. The criteria for an effective date of September 11, 2013 for the award of an increased rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for an effective date of September 11, 2013 for the award of a TDIU have been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1999 to December 2003. These matters are on appeal from August 2014, October 2018, and May 2019 rating decisions by Department of Veterans Affairs (VA) regional offices (Ros). The Veteran had a hearing before the undersigned Veterans Law Judge in July 2021. A transcript has been associated with the file. Earlier Effective Date Claims In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall 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. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. With regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, it is the date when the veteran met the requirements for the benefits sought, which is determined on a "facts found" basis. 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. For instance, if a veteran filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). 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 for increase. In general, "date of receipt" means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1 (r). A claim is "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1 (p). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). The Veteran filed his original claim to service connection for PTSD in September 2013. In August 2014, the Veteran was awarded service connection for PTSD rated as 50 percent disabling effective September 11, 2013. The Veteran perfected an appeal. While this claim was pending, the Veteran filed a claim for Gulf War Syndrome in May 2018. The RO took this as a claim to an increased rating for PTSD and granted an increased rating to 70 percent effective May 11, 2018, the date of his Gulf War Syndrome claim. However, the August 2014 rating decision never became final and therefore, the effective date of September 11, 2013 is still available to the Veteran should his PTSD meet the requirements for a higher than 50 percent rating from that date. Having established September 11, 2013 is a possibility as an earlier effective date, the Board will turn to the question of whether the Veteran's PTSD warranted a rating in excess of 50 percent prior to May 11, 2018. In his July 2021 hearing, the Veteran said he walked off jobs and couldn't go to school because of anxiety. His last employment was in 2011 with a friend's uncle who needed help on a farm. They were aware of his symptoms and asked for help with manual labor, micromanaged Veteran, let him take breaks, and allowed headphones. He was happy with the Veteran's work but during that time, the Veteran was having panic attacks and poor sleep so didn't want to continue. The Veteran reported his symptoms from 2013 to 2018 included sleep problems, nightmares, racing thoughts, trying to avoid panic attacks, have tried to have relationships, but they "just deteriorate over time." The Veteran had a hard with his parents, had panic attacks, had groceries delivered, and went to restaurants at off times. The Veteran hadn't had a driver's license since 2017, in part because he couldn't handle the idea of going to the DMV. The Veteran also reported he was hypervigilant and was unable to be in crowds. The Veteran also set up his own security cameras even though his housing facility didn't have any of their own. The Veteran also reported doing the bare minimum for his hygiene, cleaning, and cooking. The Veteran reported he didn't have suicidal ideations, but did have anger at people and the government and his situation. The Board finds the Veteran is entitled to a higher 70 percent rating for his PTSD from September 11, 2013. The Veteran's record indicates he sought routine care for his mental health, both individual and group therapy. The Veteran consistently reported symptoms such as high stress, panic attacks, nightmares, feelings of dread, chronic sleep problems, feeling like people were out to get him, anxiety, and self-medicating. The Veteran routinely denied homicidal and suicidal ideations and was normally found to be well groomed with thoughts within normal limits, with no psychotic symptoms, and was oriented. During this time, the Veteran also reported he was unable to watch tv shows or the news, was unable to keep a job and had deep rooted anger. The Veteran was in contact with this mother but had a strained relationship with her. The Veteran also reported he didn't have many friends, though he did try to get out to play pool with a friend or play disc golf. (See e.g. July, August 2013, January, February 2014, March, June 2015, January, October 2016, February 2018 treatment records.) A February 2014 examiner found the Veteran's symptoms led to occupational and social impairment with reduced reliability and productivity. The Veteran was essentially homeless, had lost his job, would yell at the TV, last worked in 2009 and had trouble with work due to stress. The Veteran's symptoms also included depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, inability to establish and maintain effective relationships. In March 2014, the Veteran said that his life had been "an unstable mess" and was getting worse. The Veteran had been self-medicating, isolating from family and friends, had nightmares, panic attacks, trouble concentrating, low self-esteem, hypervigilance, and trouble in crowds. The Veteran also said he had flashbacks. The Veteran's denial of PTSD led to him destroying his credit, trouble with his teeth, and ruining his relationship with his spouse and son. The Veteran hadn't had a relationship for eight years. The Veteran's mother also submitted a statement saying the Veteran hadn't been the same since returning from service. The Veteran could not watch the news without becoming violent, was not easy going anymore, had nightmares, and was struggling. The Veteran's Social Security Administration (SSA) records show the SSA found him to be disabled due, in large part, to his mental health which led to trouble accepting instructions from supervisors, interactive with coworkers and the public. Problems performing work activities, problems with regular work attendance and trouble with stress in the workplace. The Board finds when looking at the Veteran's disability picture as a whole, including his objective medical records and his statements of symptoms, the Board finds the Veteran's symptoms most closely approximate those warranting a higher 70 percent rating back to September 11, 2013. Thus, with the granted increased rating to September 11, 2013, the Board also finds the Veteran met the schedular criteria for a TDIU as of September 11, 2013. Clearly, based on the evidence above, the Veteran's mental health leads to significant occupational impairment with deficiencies in most areas. Adding to this, the Veteran also is service-connected for a bilateral knee disability, which causes him constant pain. The Veteran uses bilateral knee braces and a May 2019 examiner found the Veteran's knee disability would render him unable to walk, climb, or run, thus precluding him from most physical activity. The Board also finds the Veteran's mental health would prevent him from any type of work that involved working closely with supervisors, co-workers, or the public. Also, due to his anxiety and inability to deal with stress, the Veteran would have trouble with any job in which he was not allowed to take breaks or work at his own pace. Lastly, the Board also notes again that the SSA found the Veteran disabled primarily due to his mental health disability. Therefore, the Board finds the award of a TDIU should be effective September 11, 2013. Service Connection Claim Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. 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 or 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 threshold for normal hearing is 0 to 20 decibels. In his July 2021 hearing, the Veteran said he was a telephone systems operator while in service. He had to be on the phone all the time with no hearing protection and was exposed to loud generators and explosions of war. The Veteran reported he got hearing aids in 2017 and that it took him so long because hierarchy of needs, saying his priority was to find food and shelter. The Veteran's record indicates he currently has hearing loss for VA purposes in his left ear but not his right ear. The Veteran's service treatment records (STRs) also indicate he complained of decreased hearing while in service. However, the Board also notes that there was no significant threshold change in audiograms from the Veteran's entrance and separation. The Veteran had an examination for his bilateral hearing loss in October 2018 in which the examiner saw the Veteran in person and reviewed his file. The Veteran was found to have hearing loss for VA purposes. The examiner opined the Veteran's hearing loss was not at least as likely as not incurred in or due to his time in service. The examiner noted the Veteran's hearing loss at entrance and separation was within normal limits with no evidence of any significant threshold shifts in frequency during service. Regarding the above, the Board acknowledges the Veteran's statements that his bilateral hearing loss continues to affect his daily life and still causes symptoms and his contention that hearing loss was incurred in or due to his time in service or is otherwise related to his time in service. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the examinations, medical records, and objective records on file and has weighed them as discussed above and discussed the relative probative value of each. The Board also finds the VA examination to be adequate as the examiner reviewed the Veteran's file, saw him in person, accounted for his statements as well as his medical history, and offered opinions backed by detailed explanations. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against this claim that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that he is entitled to service connection for hearing loss. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.