Citation Nr: 21010647 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-09 081 DATE: February 25, 2021 ORDER An effective date earlier than June 26, 2014 for the award of service connection for bilateral hearing loss is denied. An initial compensable disability rating for bilateral hearing loss is denied. REMANDED Service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. An effective date earlier than April 9, 2015 for the award of a total disability rating based on individual unemployability (TDIU) is remanded. An effective date earlier than April 9, 2015 for the award of Dependents' Educational Assistance (DEA) benefits is remanded. FINDINGS OF FACT 1. In August 1968, the Veteran separated from service; a claim for service connection for hearing loss was not received within one year of the date of discharge. 2. An unappealed October 2011 rating decision, VA denied the Veteran’s claim for service connection for bilateral hearing loss. He was notified of that decision and apprised of his appellate rights but did not appeal. There was no new and material evidence received within one year of the issuance of that decision. 3. On June 26, 2014, VA received the Veteran’s claim for service connection for bilateral hearing loss. 4. There were no informal or formal claims, or written intent to file a claim for service connection for bilateral hearing loss, dated after the October 2011 denial and prior to the June 26, 2014 claim. 5. The Veteran’s hearing acuity is, at worst, Level I in the right ear and Level I in the left ear, yielding a noncompensable rating under Table VII. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date earlier than June 26, 2014 for the award of service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968 in the United States Navy. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2015, August 2015, and January 2019 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The electronic filing system contains medical records that were associated with the file by VA, rather than the Veteran, since the RO’s last readjudication of the claims without a waiver of RO jurisdiction. However, as the records are duplicative or otherwise not pertinent to the claims adjudicated below, there is no risk of prejudice to the appellant from proceeding without the waiver. 1. An effective date earlier than June 26, 2014 for the award of service connection for bilateral hearing loss is denied. Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). 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). VA amended its regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an 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. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413 (1999). Additionally, under 38 C.F.R. § 3.157(b), in effect for claims filed prior to March 24, 2015, a report of examination or hospitalization may be accepted as an informal claim for benefits if it meets the requirements of § 3.157(b). Section 3.157(b) provided that receipt of a VA outpatient or hospital examination or admission to a VA hospital could be accepted as an informal claim for increased benefits or an informal claim to reopen "[o]nce a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree." 38 C.F.R. § 3.157 (b). See also Sears v. Principi, 16 Vet. App. 244, 249 (2002). This provision is not applicable here. The Veteran seeks an effective date earlier than June 26, 2014, for the grant of service connection for his bilateral hearing loss. The precise date sought, and reasons for his appeal, are unclear from the pleadings. The Veteran separated from service in August 1968, but a claim for service connection for hearing loss was not received within one year of this date. Rather, documents filed during this time pertained to educational benefits. In an October 2011 rating decision, the RO denied service connection for bilateral hearing loss. The Veteran was notified of his appellate rights. He did not appeal or submit new and material evidence within one year, and the October 2011 rating decision became final. The effect of that finality is to preclude an award of an effective date prior to that denial. Following the October 2011 rating decision, on June 26, 2014, VA received a request from the Veteran and his representative to reopen his claim for service connection for a bilateral hearing loss, via VA Form 21-4138 (Statement in Support of Claim). In a January 2015 rating decision, the RO denied reopening the claim. In August 2015, the Veteran filed Notice of Disagreement with the January 2015 denial. The RO overlooked this filing and did not process an appeal of the claim. In July 2016, the Board remanded the claim in order to provide the Veteran with a Statement of the Case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Thereafter, in a March 2017 rating decision, the RO granted service connection for right ear hearing loss. In a January 2019 decision, the Board granted service connection for left ear hearing loss. In the January 2019 rating decision on appeal, the RO implemented the Board’s award of service connection, and assigned a noncompensable rating for bilateral hearing loss, effective June 26, 2014. The Veteran perfected an appeal of the effective date assigned by this decision. Because the current effective date of service connection was based upon the date his June 26, 2014 claim was received, the question before the Board is whether there are any earlier claims upon which an earlier effective date of service connection may be granted. On review of the record, however, the Board can point to no communication dated after the October 2011 rating decision and prior to the June 26, 2014 VA Form 21-4138 that could be interpreted as a claim for service connection for hearing loss. Specifically, in January 2012, the Veteran filed a VA Form 21-4138 regarding noise exposure which does not express any intent to file a claim, or express disagreement with the October 2011 decision. Additionally, the statement is duplicative and was previously received by VA in August 2011. Thereafter in January 2012, he filed a notice of disagreement with the RO’s denial of his claim for diabetes rendered in the October 2011 rating decision, and further perfected an appeal of this claim within 2012; no mention was made of hearing loss at any point. Rather, it was not until June 26, 2014 that he expressed any intent to apply for service connection for hearing loss. Thus, the only date that could serve as a basis for the award of service connection is the date of receipt of the June 26, 2014 claim for service connection. The exact date on which entitlement arose need not be ascertained in order to conclude that the June 26, 2014 date selected by the RO is the earliest possible effective date here. The reason for this is that, to the extent that entitlement arose prior to June 26, 2014, the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Any evidence showing that the entitlement occurred after June 26, 2014 would similarly not entitle the Veteran to an effective date earlier than that already assigned. There is simply no legal entitlement to an earlier effective date for the award of service connection for the Veteran’s bilateral hearing loss disability. As such, the claim must be denied. 2. An initial compensable disability rating for bilateral hearing loss is denied. Disability evaluations 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. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The Board's analysis will focus specifically on what evidence is needed to substantiate the claim, and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The probative evidence here is limited and consists of the February 2017 VA examination report discussed below. The Veteran's treatment records were considered, but do not contain the specific information sufficient for rating hearing loss under the applicable rating criteria. As noted above, in the January 2019 rating decision on appeal, the Veteran was awarded service connection for bilateral hearing loss and was assigned a noncompensable rating, effective June 26, 2014. Under the applicable criteria, disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See 38 C.F.R. § 4.85. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86, although this regulation is not applicable here. On VA examination in February 2017, the Veteran reported having difficulty hearing the television as well as hearing his wife due to hearing loss. The following puretone thresholds, in decibels, were obtained: HERTZ 1000 2000 3000 4000 RIGHT 15 20 35 25 LEFT 5 25 35 30 The puretone threshold average was 23.75 decibels on the right, with a speech discrimination score of 92 percent, yielding Level I hearing according to Table VI. On the left, the puretone threshold average was 23.75 decibels, with a speech discrimination score of 96 percent, yielding Level I hearing. Combining these, according to Table VII, yields a noncompensable rating. The Veteran’s VA treatment records were reviewed, but as noted, they do not contain the audiological information sufficient for rating the disability under the pertinent rating criteria. As such, the preponderance of the evidence is against the assignment of an initial compensable disability for bilateral hearing loss based on the audiometric data. The Board finds that the VA examination report is fully adequate for adjudication. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Board has also considered the lay statements in adjudicating the claim. However, ratings for hearing loss disabilities involve a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann, 3 Vet. App. at 345. In sum, as the preponderance of the evidence is against the claim, the claim must be denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. REASONS FOR REMAND 1. Service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. In a November 2019 decision, the Board denied the claim for service connection for sleep apnea. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court vacated the November 2019 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). In doing so, the parties found that a March 2019 VA examination, upon which the Board relied, was inadequate because the examiner did not address the matter of whether the Veteran’s service-connected posttraumatic stress disorder (PTSD) caused his obesity, and in turn, whether the Veteran’s obesity may constitute an “intermediate step” in establishing service connection for sleep apnea on a secondary basis. Neither the March 2019 VA examiner, nor the Board in the November 2019 decision, addressed medical treatise evidence submitted by the Veteran indicating that PTSD may lead to obesity. In reaching this finding, the parties cited Walsh v. Wilkie, 32 Vet. App. 300, 302 (2020), in which the Court held that service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. See also General Counsel Precedent Opinion 1-2017. While a January 2020 Disability Benefits Questionnaire pertaining to sleep apnea was submitted subsequent to the Joint Motion, it does not address the Veteran’s obesity. The Board thus finds that a further examination is required addressing the matter raised by the parties in the Joint Motion. 2. Service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. While the September 2020 Joint Motion did not pertain to the claim for service connection for hypertension due to the fact that the claim was in remand status at the time, the Board finds that a further medical opinion is required given the basis of the Joint Motion. On VA examination in both December 2014 and October 2016, VA examiners opined that a personal risk factor for the Veteran in the development of his hypertension was his obesity. These examiners, however, did not adequately address whether obesity may constitute an “intermediate step” in establishing service connection for hypertension on a secondary basis, and did not address the medical treatise evidence supplied by the Veteran indicating a relationship between his obesity and service-connected disabilities. As the parties found that the March 2019 VA examination pertaining to sleep apnea was inadequate based on the same deficiency present in the VA examinations pertaining to hypertension, the Board finds that a further opinion for hypertension must also be obtained. See also Garner v. Tran, U.S. Vet. App. No. 18-5865 (Jan. 26, 2021) (providing a list of six non-exhaustive considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step, including treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; and obesity as a side effect of medication where the medication is prescribed for a service-connected disability.) The Veteran has submitted such treatise evidence, and has raised arguments concerning the medications used to treat service-connected disabilities. 3. An effective date earlier than April 9, 2015 for the award of a total disability rating based on individual unemployability (TDIU) is remanded. 4. An effective date earlier than April 9, 2015 for the award of Dependents' Educational Assistance (DEA) benefits is remanded. A decision on the claims for service connection for sleep apnea and hypertension could significantly impact a decision on the matter of when it became factually ascertainable that the Veteran was entitled to a TDIU. Additionally, the TDIU matter may be impacted by any rating or effective date assigned for these disabilities, should service connection be awarded. As such, the claim for earlier effective dates for a TDIU is inextricably intertwined with the claims for service connection. The claim for an earlier effective date for DEA benefits is intertiwned with the TDIU claim. As such, both must be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to obtain an opinion addressing the nature and etiology of his sleep apnea and hypertension. A complete explanation must be provided for all opinions rendered. Opine as to whether it is as likely as not that any service-connected disability, or medication used to treat such a disability, (i.) caused or (ii.) aggravated the Veteran’s obesity? If yes as to either, please respond to the following additional questions: (a.) was obesity a substantial factor in causing sleep apnea or hypertension? (b.) would sleep apnea or hypertension not have occurred but for obesity caused by the service-connected disability or medication used to treat that disability? (c) does the Veteran’s obesity aggravate his sleep apnea or his hypertension? In responding to the above questions, please consider the following: • Medical treatise evidence supplied by the Veteran, including a February 2010 article in World Psychiatry noting that, “PTSD may be a risk factor for being overweight.” • December 2014 and October 2016 VA examination reports indicating that a personal risk factor for the Veteran in the development of his hypertension has been his obesity. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.