Back to BVA DecisionsDENIEDSpecial Benefit TDIU Diagnostic Code 6100 Docket No. 12-27 490A
HEARING LOSS
BARBARA B. COPELAND · 2019 · Case ID: 19159341
Summary
The veteran, who served from March 1979 to March 1984, appeals the denial of a compensable rating for left ear hearing loss and the denial of an earlier effective date for his Total Disability based on Individual Unemployability (TDIU). The Board found the evidence against a compensable rating for left ear hearing loss, noting that while the veteran testified to hearing difficulties and underwent a February 2019 VA audiological examination, the results did not meet the criteria for a compensable rating under Diagnostic Code 6100. The audiometric results indicated a 0 percent disabling rating for the left ear. The Board also denied the claim for an earlier effective date for TDIU. The veteran was granted TDIU effective May 5, 2014, based on his combined disability rating increasing to 80 percent due to increased ratings for lumbar degenerative disc disease, radiculopathy, and MDD. However, the Board found no evidence that the veteran met the criteria for TDIU prior to May 5, 2014, despite his earlier claims for increased ratings and TDIU. The Board concluded that the preponderance of the evidence weighed against the claim for a compensable rating for left ear hearing loss and denied the earlier effective date for TDIU.
Rationale
Preponderance of evidence against compensable rating; Audiometric results did not meet criteria for compensable rating; Assigned 0 percent rating per Table VII of DC 6100
Full Decision Text
Citation Nr: 19159341 Decision Date: 08/01/19 Archive Date: 07/31/19 DOCKET NO. 12-27 490A DATE: August 1, 2019 ORDER The claim of entitlement to a compensable rating for service-connected left ear hearing loss is denied. The claim of entitlement to an effective date earlier than May 5, 2014, for the grant of a total rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record does not show that left ear hearing loss has manifested to a compensable degree. 2. The earliest date that it is factually ascertainable that the Veteran was totally disabled by reason of individual unemployability due to service-connected disabilities is May 5, 2014, the date that his combined disability rating increased to 70 percent and he is shown to be unemployable due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.385, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, Diagnostic Code (DC) 6100 (2018). 2. The criteria for entitlement to an effective date earlier than May 5, 2014, for the grant of a TDIU have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1979 to March 1984. This case is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) regional office. In December 2017, a videoconference hearing was held before the undersigned; a transcript of the hearing is included in the claims file. In August 2018, the claims were remanded for additional evidentiary development, and they have now been returned for further appellate consideration. Increased Ratings – In General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). 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 (2018). 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 (2018). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2018). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to a compensable rating for service-connected left ear hearing loss. Service connection for left ear hearing loss was established upon rating decision in October 2004. A noncompensable rating was assigned at that time and has been in effect ever since. It is the Veteran’s assertion that a compensable rating is warranted. After a careful review of the evidence of record, both lay and medical, the Board finds that the preponderance of the evidence is against a compensable disability rating for the Veteran’s left ear hearing loss disability. The Veteran’s left ear hearing loss disability is currently rated as noncompensable, or 0 percent disabling under 38 C.F.R. § 4.85, DC 6100. Under DC 6100, a disability rating for hearing loss is determined by a mechanical application of the Rating Schedule to the numeric designations assigned based upon audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85 (2018). The Rating Schedule also recognizes exceptional patterns of hearing impairment; however, the evidence of record fails to document such hearing loss severity in this instance. See 38 C.F.R. § 4.86 (2018). As noted in the Board’s remand of August 2018, the Veteran underwent audiometric evaluation in June 2016. He testified in December 2017 that he had trouble hearing, necessitating the need for hearing aids. Thus, additional VA audiological examination was requested. The requested VA evaluation was conducted in February 2019. The Veteran’s puretone threshold levels, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 Average LEFT 45 50 40 35 45 42.50 The Veteran’s speech recognition score based on the Maryland CNC Test was 96 percent in the left ear. The examiner diagnosed the Veteran with mixed left ear hearing loss. In order to determine the appropriate disability rating for the Veteran’s left ear hearing loss based upon the audiologic results discussed above, the Board first looks to Table VI of DC 6100 as directed by 38 C.F.R. § 4.85(b) (2018). Based upon the February 2019 VA examination results, Table VI assigns Roman numeral I to the left ear. In cases, such as this one, where only one ear is service-connected for hearing loss, the nonservice-connected ear is assigned Roman numeral I for purposes of determining the appropriate rating according to Table VII. See 38 C.F.R. § 4.85(f) (2018). He does not satisfy the criteria of 38 C.F.R. § 3.382 to treat the right ear as service-connected for hearing loss. 38 C.F.R. § 3.383(a)(3). The audiometric findings combine for a Roman numeral I for the left ear, per Table VI. See 38 C.F.R. § 4.85 (2018). As such, Table VII indicates that a noncompensable, or 0 percent, disability rating is warranted. 38 C.F ear is assigned Roman numeral I for purposes of determining the appropriate rating according to Table VII. See 38 C.F.R. § 4.85(f) (2018). He does not satisfy the criteria of 38 C.F.R. § 3.382 to treat the right ear as service-connected for hearing loss. 38 C.F.R. § 3.383(a)(3). The audiometric findings combine for a Roman numeral I for the left ear, per Table VI. See 38 C.F.R. § 4.85 (2018). As such, Table VII indicates that a noncompensable, or 0 percent, disability rating is warranted. 38 C.F.R. § 4.85(e) (2018). The Board has considered the Veteran’s assertions regarding exposure to acoustic trauma in the record, which is probative insofar as it reports observable symptoms, such as difficulty hearing. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that such lay statements assert entitlement to an increased disability rating, they are less probative than the objective evidence of record discussed herein which permit the required mechanical application of the Rating Schedule to numeric designations assigned based upon audiometric test results. For the reasons described above, the Board finds that the preponderance of the evidence is against a compensable disability rating for the Veteran’s left ear hearing loss. See 38 C.F.R. § 4.71a, DC 6100. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (20102); 38 C.F.R. § 3.102 (2018). Effective Dates – In General In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from that date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a),(b)(2) (2012); 38 C.F.R. § 3.400(o) (2018); Harper v. Brown, 10 Vet. App. 125 (1997). Unless otherwise provided, the effective date of an award of increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2018). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased rating is received within one year from that date. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2018). Entitlement to an effective date earlier than May 5, 2014, for the grant of a TDIU. In an August 2014 rating decision, the RO granted the Veteran a TDIU, effective from May 5, 2014, based on service-connected lumbar degenerative disc disease (DDD), major depressive disorder (MDD), lumbar radiculopathy of the left lower extremity (LLE) and the right lower extremity RLE), tinnitus, left ear hearing loss, and erectile dysfunction (ED). In November 2014, the Veteran asserted that the effective date for the grant of the TDIU should be dated back to his first application which he submitted in July 2012. In this case, determining an appropriate effective date for a TDIU under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for a TDIU was received and, if possible, (2) when the criteria for a TDIU were met. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2018). A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). A dated back to his first application which he submitted in July 2012. In this case, determining an appropriate effective date for a TDIU under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for a TDIU was received and, if possible, (2) when the criteria for a TDIU were met. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2018). A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b) (2018). The record reflects that the Veteran filed claims for service connection for an acquired psychiatric disorder and for increased ratings for various service-connected disabilities in January 2012. His claim for a TDIU was added to the record in August 2012. The Veteran underwent VA examinations in 2013 to address the claims raised. In a September 2013 rating decision, service connection for MDD was established and a 30 percent rating was assigned, effective January 12, 2012. The noncompensable rating in effect for the left ear hearing loss was confirmed. The Veteran underwent additional VA mental health examination in December 2013, as well as audiometric and spine examinations in May 2014. In an August 2014 rating decision, the 30 percent rating in effect for MDD was confirmed. In an August 2014 rating decision, the Veteran’s 20 percent disability rating in effect for the service-connected lumbar spine disorder was increased to 40 percent, effective May 5, 2014. Ten percent ratings in effect for RLE and LLE radiculopathy were increased to 20 percent, also from May 5, 2014. As the basis for TDIU, which was also granted from May 5, 2014, the RO explained that the Veteran was found unable to maintain gainful employment based on his service-connected disorders. Review of the record shows that the Veteran met the schedular criteria for a TDIU on May 5, 2014, when his combined evaluation was increased to 80 percent based on increased disability ratings for his back disability and for associated radiculopathy of the lower extremities. The increase in severity of his condition was shown upon VA examination on May 5, 2014. Prior to May 5, 2014, the Veteran’s service-connected disabilities combined to 60 percent. Thus, he did not meet the schedular criteria for a TDIU nor is it otherwise demonstrated that his service-connected disabilities precluded employment from an earlier date. While the Veteran filed a claim in 2012 for a TDIU, there was never any indication prior to May 5, 2014, that the Veteran’s actual service-connected disabilities precluded employment. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith 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.