Citation Nr: 21040231 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-49 999A DATE: July 2, 2021 ORDER Entitlement to an earlier effective date for service connection of bilateral hearing loss, prior to November 22, 2011 is denied. Entitlement to an earlier effective date for service connection of tinnitus, prior to November 22, 2011 is denied. Entitlement to service connection for an acquired psychiatric condition, to include anxiety, and as secondary to tinnitus is granted. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to an increased rating, in excess of 10 percent disabling, for tinnitus is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In November 2011, the Veteran filed a claim of service connection for several conditions, to include bilateral hearing loss, and tinnitus. 2. The record does not reflect that the Veteran had unadjudicated service connection claims for his bilateral hearing loss and tinnitus prior to November 22, 2011. 3. The Veteran's acquired psychiatric disability, claimed as anxiety, is proximately due to/aggravated beyond its natural progression by his service-connected tinnitus. 4. The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. 5. The Veteran is currently assigned the maximum schedular rating for his tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date for service connection of bilateral hearing loss, prior to November 22, 2011 have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. 2. The criteria for entitlement to an earlier effective date for service connection of tinnitus, prior to November 22, 2011 have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. 3. The criteria for service connection for an acquired psychiatric disability, to include as secondary to the Veteran's service-connected disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 5. The criteria for an increased rating, in excess of 10 percent disabling, for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1986 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Earlier Effective Date 1. Entitlement to an earlier effective date for service connection of bilateral hearing loss, prior to November 22, 2011. 2. Entitlement to an earlier effective date for service connection of tinnitus, prior to November 22, 2011. The Veteran seeks earlier effective dates for the grant of service connection for bilateral hearing loss and tinnitus. The effective date of an evaluation and grant 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 the later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 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. Prior to March 24, 2015, VA recognized formal and informal claims. The amendments also, inter alia, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 38 C.F.R. §§ 3.151, 3.155. Under the old regulations, "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, 34-35 (1998). The Veteran was granted service connection for these disabilities in a July 2013 rating decision with an effective date of November 22, 2011. After careful consideration, the Board finds that entitlement to an earlier effective date for the grant of service connection for these conditions is not warranted. The Veteran's initial claim for service connection for these conditions was received by the VA on November 22, 2011, with no prior formal or informal communication from the Veteran or his representative expressing an intent to file a claim. Neither the Veteran nor his representative have submitted any argument justifying the requested earlier effective dates. As the effective date for service connection is the date of receipt of the claim or the date entitlement arose, whichever is later, an effective date prior to November 22, 2011 is not warranted. Accordingly, the claims for effective dates earlier than November 22, 2011 for the grant of service connection for bilateral hearing loss and tinnitus are denied. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Further, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309, such as arthritis. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 C.F.R. § 3.102 (2015); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for an acquired psychiatric condition, to include anxiety, and as secondary to tinnitus. The Veteran asserts that his acquired psychiatric condition is related to his military service. Alternatively, he contends that his service-connected tinnitus disability has caused or aggravated his acquired psychiatric condition, claimed as an anxiety disorder. VA treatment records show the Veteran has a current acquired psychiatric disability of a generalized anxiety disorder, and the December 2014 private examiner opined that it is at least as likely as not proximately due to or the result of/aggravated beyond its natural progress by his service-connected tinnitus. There is no other medical opinion on the issue. In December 2014, after a mental status evaluation of the Veteran and review of the evidence of record, Dr. H. H-G. opined that the Veteran's service-connected tinnitus had aggravated his anxiety disorder. (See December 2014 report, prepared by Dr. H. H-G., at page (pg.) 3)). Dr. H. H-G. bolstered her opinion with medical literature that supported an association between tinnitus and co-morbid psychological disorders, to include a high prevalence of anxiety and depression in individuals who suffered with tinnitus. In addition, according to Dr. H. H.-G., those individuals who suffered from bilateral hearing loss were more inclined to experience anxiety, social isolation, frustration, and depression. Id. The Board finds Dr. H. H.-G's opinion to be probative and well-reasoned and supported by medical literature and, notably, other evidence of record. Dr H. H-G's opinion is supportive of the claim for an anxiety disorder on a secondary basis and is uncontroverted. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current acquired psychiatric disability is proximately due to/aggravated beyond its natural progression by his service-connected tinnitus and hearing loss disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation 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, 58 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. Entitlement to a compensable rating for bilateral hearing loss. The Veteran seeks a compensable rating for his service-connected bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A November 2017 VA examination reveals that the Veteran reported that he has difficulty understanding people, needs to wear hearing aids, and has to increase the volume on his television. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 50 50 50 46 100 LEFT 30 45 50 55 45 100 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. An August 2020 VA examination reveals that the Veteran reported that he has difficulty understanding people, needs to wear hearing aids, and has to increase the volume on his television. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 50 55 55 48.75 96 LEFT 30 45 55 60 47.5 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's complaints of hearing difficulties. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to an increased rating, in excess of 10 percent disabling, for tinnitus. The Veteran seeks an increased rating for his service-connected tinnitus, which is currently assigned a 10 percent rating (the maximum available rating under the relevant criteria, regardless of whether perceived in one ear, both ears, or in the head). See 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2; see Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Consequently, while the Board acknowledges the Veteran's allegations of worsening tinnitus in VA treatment records, it concludes that his service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260, his disability picture is not so unique as to be outside of what is contemplated by the schedular rating, and any claim for a higher (or separate) rating under that Diagnostic Code must be denied. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus, a disability rating in excess of 10 percent is denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As service connection for an acquired psychiatric condition, to include anxiety, has been granted, a decision on the TDIU claim must be deferred on remand until a disability rating is assigned for an acquired psychiatric condition, to include anxiety. The matters are REMANDED for the following action: 1. Readjudicate the TDIU claim once a disability rating is assigned for the Veteran's psychiatric condition. (Continued on the next page) 2. If the claim remains denied, the Veteran should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. Idongesit T. Umo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor 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.