Citation Nr: 21030920 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-36 201A DATE: May 20, 2021 ORDER Entitlement to an effective date earlier than May 15, 2018 for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than May 15, 2018 for the grant of service connection for hearing loss is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for boils on the chest is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran did not file a claim for service connection for hearing loss or tinnitus within a year of his discharge from service and did not file the intent to file, followed by a claim for hearing loss and tinnitus, until May 15, 2018. 2. The Veteran has a 10 percent rating for his tinnitus, which is the maximum permissible schedular rating for this disease. CONCLUSIONS OF LAW 1. The criteria are not met for an effective date earlier than May 15, 2018, for the grant of service connection for the hearing loss and tinnitus. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155; 3.400, 3.816. 2. The criteria are not met for a rating higher than 10 percent for the tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.87, Diagnostic Code (DC) 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable service from July 1967 to July 1970 but his additional service after that has been deemed a bar to disability benefits from the agency. This appeal to the Board of Veterans' Appeals (Board) is from October 2014 and December 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Concerning the Veteran's claim for a TDIU, this claim previously was before the Board in June 2019 and denied. The Veteran appealed the Board's decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In February 2020, the parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order that same month, partially vacating the Board's decision and, pertinently here, remanding the TDIU claim back to the Board for further development and re-adjudication in compliance with directives specified. Earlier Effective Date Claims 1. Entitlement to an effective date earlier than May 15, 2018 for the grant of service connection for tinnitus and hearing loss The Veteran contends that he is entitled to an effective date prior to May 15, 2018 for the grant of service connection for hearing loss and tinnitus because he had symptoms of these disabilities prior to that date. The first thing worth pointing out in response to this argument, however, is that the effective date for an award of service connection is not generally predicated on the date of medical or other evidence showing or suggesting the Veteran had the condition at issue or even commonly associated symptoms, instead, it is based on when he actually filed a claim for the condition. In other words, in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits. See Ellington v. Nicholson, 22 Vet. App. 141 (2007). The general rule for an effective date for service connection provides that, if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement will be either the day following separation from service or the date entitlement arose. 38 U.S.C. § 5110(b)(1). Here, though, there is no contention that a claim for these disorders was received within a year of the Veteran's separation from service. In fact, the first claim for benefits on file is not until 2005 and does not include a claim for hearing loss or tinnitus. A specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a). A "claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Consider also however that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Here, a review of the record on appeal shows that, on May 15, 2018, VA received VA Form 21-0966, Intent to File, from the Veteran. In August 2018, he submitted VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. On this form, he indicated that he was claiming entitlement to service connection for "hearing loss" and "hearing problem in right ear." The "hearing problem in right ear" was later determined to be tinnitus, i.e., ringing in this ear. Thus, the earliest permissible effective date for the later grants of service connection for hearing loss and tinnitus is May 15, 2018, the date that VA received his intent to file. His claim for an earlier effective date for his hearing loss and tinnitus consequently is denied. Increased Rating 2. Entitlement to a rating higher than 10 percent for tinnitus, to include on an extra-schedular basis The Veteran contends that his tinnitus is more severe than contemplated by his existing 10 percent rating. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Tinnitus in rated under 38 C.F.R. § 4.87, DC 6260, which instructs that a 10 percent disability rating is warranted for recurrent tinnitus. The Veteran already has this rating, which is the highest schedular rating available, irrespective of whether the tinnitus is unilateral, bilateral, or perceived as elsewhere in the head. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). During his August 2018 VA audiological examination, the Veteran reported that his tinnitus is "bothersome." Service connection also is in effect, however, for his bilateral hearing loss that he has stated causes him trouble hearing the television. There are no indications of other manifestations of the tinnitus that are not covered by the schedular rating criteria, nor is there evidence of an exceptional or unique disability picture caused by his tinnitus warranting extra-schedular consideration of this claim by referring it to the Director of the Compensation Service under the special provisions of 38 C.F.R. § 3.321(b)(1). Ultimately, the probative evidence of record does not support finding that the Veteran's tinnitus has manifested in ways not contemplated by the applicable rating criteria. 38 C.F.R. § 4.87, DC 6260. A panel decision issued in December 2017 by the Veterans Court/CAVC affirmed a December 2015 Board decision that, like here, had denied a compensable schedular rating for bilateral hearing loss, as well as referral for a rating based on extra-schedular consideration under 38 C.F.R. § 4.16. See Rossy v. Shulkin, 29 Vet. App. 142 (2017). That appeal to the Court was filed after the Court decided Doucette v. Shulkin, 28 Vet. App. 366 (2017), which had affirmed a Board decision denying extra-schedular referral when only the functional effects alleged were aspects of hearing loss. The Court concluded that Doucette directed the outcome of the appeal in Rossy as well. In Doucette, the Court addressed how to conduct an extra-schedular analysis, specifically, the first Thun inquiry in the contest of a hearing loss claim. The Court held that the rating criteria for §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely, difficulty understanding speech and the inability to hear sounds in various contexts. While leaving open the possibility that extra-schedular consideration for hearing loss might be warranted by other symptoms or functional effects associated with that disability, the Court further held that extra-schedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record. The Court saw no basis to distinguish that appeal from Doucette; as in this case, the only hearing loss problem alleged by the Appellant was difficulty hearing the television, including owing to his tinnitus. Absent other factors, the Court found that this sort of complaint is squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria. The Court found that the Appellant had failed to demonstrate any error regarding his bilateral hearing loss. The Court affirmed the Board's decision. Recognizing all of this, the threshold element for extra-schedular consideration is not met and any further consideration of governing norms or referral to the appropriate VA officials for extra-schedular consideration is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Moreover, as the rating criteria explicitly reference tinnitus, the Board cannot rate this disability under any other DC. Copeland v. McDonald, 27 Vet. App. 333 (2015). As such, there is no legal basis, schedular or extra-schedular, upon which to award a rating higher than 10 percent for the Veteran's tinnitus. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran had a VA audiological examination in August 2018. However, this examiner noted that the hearing test results were invalid for rating purposes because the Veteran had severe cerumen impaction, bilaterally (meaning ear wax). The examiner consequently recommended a retest. Thus, to obtain valid audiological results, VA must schedule the Veteran for an additional VA hearing examination. 2. Entitlement to service connection for a respiratory disability and chest boils is remanded. The Board cannot make a fully informed decision concerning these claims because no VA examiner has opined on whether they are at least as likely as not related to the Veteran's Agent Orange exposure while serving in Vietnam. VA and private treatment records do not discuss the etiology of these disabilities, including in terms of whether related or attributable to the Veteran's military service. Absent affirmative evidence to the contrary, a Veteran has presumed herbicide agent exposure, including to the dioxin in Agent Orange, if the evidence demonstrates that he served in the Republic of Vietnam during the Vietnam War era. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. The Veteran's service personnel records (SPRs) show he was awarded the Bronze Star Medal for action on the ground in the Republic of Vietnam in February 1968. It therefore is presumed he was exposed to herbicide agents, including the dioxin in Agent Orange, while serving in Vietnam. Neither the Veteran's respiratory disability nor his chest boils, however, are presumptively associated with exposure to Agent Orange. 38 C.F.R. § 3.309(e). Because of this, his theory of entitlement is a direct service connection rather than a presumptive service connection. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). Medical comment therefore is needed concerning whether the Veteran's respiratory disability and chest boils are direct results of his presumed exposure to herbicide agents while in Vietnam. Further, concerning his chest boils, the Veteran has contended that they also were caused by multiple leech bites during his service in Vietnam, so medical comment is also needed to address this other contention. 3. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded claims for a higher rating for the hearing loss and for service connection for a respiratory disorder and chest boils could significantly impact the disposition of the claim of entitlement to a TDIU, these claims are inextricably intertwined. Thus, the Board must temporarily defer considering this TDIU claim until completion of the additional development being directed concerning the inextricably intertwined claims. Accordingly, these claims are REMANDED for the following action: 1. If there are outstanding records concerning these remaining claims, obtain them and appropriately notify the Veteran if unable to obtain any additional records that he identifies with the required amount of information. 38 C.F.R. § 3.159(c) and (e). 2. After receiving all additional treatment or other relevant records, schedule the Veteran for an additional examination by an appropriate clinician to reassess the severity of his service-connected bilateral hearing loss. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria. 3. Also schedule the Veteran for a VA examination for his respiratory disability. The examiner is asked to opine on whether any respiratory disability confirmed to exist is at least as likely as not attributable to the Veteran's service, including especially to his presumed exposure to herbicide agents in Vietnam? The examiner is advised that an unfavorable opinion cannot be based solely on the fact that respiratory disabilities other than certain cancers are not on the list of diseases that are presumptively associated with exposure to herbicide agents. In other words, it is still possible to establish service connection in this circumstance based, instead, on direct causation. 4. As well, schedule the Veteran for a VA examination for his chest boils. The examiner is asked to opine on whether any chest boils confirmed to exist are at least as likely as not related to the Veteran's service, including to leech bites and/or his presumed exposure to herbicide agents in Vietnam? The examiner is advised that an unfavorable opinion cannot be based solely on the fact that chest boils are not on the list of diseases that are presumptively associated with exposure to herbicide agents. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.