Citation Nr: 18132266
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-19 827
DATE:	September 6, 2018
ORDER
Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is granted.
Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied.
Entitlement to an earlier effective date prior to June 10, 2011, for the award of service connection for hearing loss is denied.
REMANDED
Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded.
FINDINGS OF FACT
1. Resolving reasonable doubt in the Veteran’s favor, his major depressive disorder is proximately due to/aggravated by his service-connected tinnitus.
2. The Veteran’s service-connected tinnitus is assigned a 10 percent disability rating, which the maximum is rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or bilateral condition.
3. The earliest document in the claims file that may be accepted as a claim for entitlement to service connection for bilateral hearing loss is an application for disability compensation benefits (VA Form 21-526) received from the Veteran on June 10, 2011.
CONCLUSIONS OF LAW
1. The criteria for entitlement to secondary service connection for an acquired psychiatric disorder are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).
2. The criteria for entitlement to an initial disability rating in excess of 10 percent for tinnitus are not met.  38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.87, Diagnostic Code (DC) 6260.
3. The criteria for entitlement to an effective date prior to June 10, 2011, for the award of service connection for bilateral hearing loss have not been satisfied.  38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400 (2013) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served a period of active duty for training (ACDUTRA) from August 1990 to November 1990, with additional service with the Army National Guard of Illinois.  The Board has recharacterized separate issues of entitlement to service connection for anxiety disorder, bipolar disorder, depressive disorder, and a psychosis for the purpose of establishing eligibility to treatment to entitlement to service connection for an acquired psychiatric disorder.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In an April 2014 rating decision, the Veteran was granted entitlement to service connection for right ear hearing loss effective June 10, 2011.  In December 2017, service connection for left ear hearing loss was then granted.
Service Connection
Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities
The Veteran contends that he has a psychiatric disorder that was caused by or aggravated by his service-connected tinnitus.
The Board concludes that the Veteran has a current diagnosis of major depressive disorder that was aggravated by his service-connected tinnitus.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310(a).
In March 2018, the Veteran’s representative submitted a March 2015 private examiner’s Disability Benefits questionnaire (DBQ) completed by a private psychologist which noted a diagnosis of recurrent, moderate, major depressive disorder.  The provider concluded it was more likely than not that the Veteran’s service-connected tinnitus was aggravating his major depressive disorder.  In support of this conclusion, the examiner stated that medical studies have confirmed the existence of neural circuits that are activated both in depression and tinnitus.  Moreover, individuals with this type of medical issue and major depressive disorder become disabled due to the holistic effect of medical and psychiatric disturbance.
The Board finds the March 2015 private provider’s opinion is entitled to great probative weight.  The examiner addressed the Veteran’s assertion as to the origins of the disability, and provided an adequate rationale for the conclusion reached based on the record and sound medical principles.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  There is no medical opinion to the contrary in the record concerning the etiology of the Veteran’s major depressive disorder.  
Based on the foregoing evidence, the Board finds that the preponderance of the evidence is in favor of service connection for an acquired psychiatric condition, and the claim is granted.
Increased Rating
Entitlement to an initial disability rating in excess of 10 percent for tinnitus
The Veteran contends that he is entitled to a higher disability rating for tinnitus.  The maximum schedular rating available for tinnitus is 10 percent.  The rating schedule directs that only a single rating of 10 percent is assigned for recurrent tinnitus whether the sound is perceived in one ear, both ears, or in the head.  38 C.F.R. § 4.87, DC 6260.  Currently, the Veteran’s tinnitus is already rated 10 percent.  Thus, there is no legal basis upon which to award an increased rating for tinnitus on a schedular basis, and the appeal must be denied.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).
Earlier effective date
Entitlement to an earlier effective date prior to June 10, 2011, for the award of service connection for hearing loss
The Veteran seeks an earlier effective date for the award of service connection for bilateral hearing loss.  Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for service connection of the Veteran’s claim is not warranted. 
Regulations defining a “claim” were revised effective March 24, 2015, and apply only to claims and appeals filed after that date. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. The applicable regulations for the instant case are those prior to the revision.
Generally, the effective date of an evaluation and award of compensation based on an original claim will 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. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. 3.400 (b)(2)(i).
A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a) (2013).  The term “claim” or “application” means 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) (2013).
Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, 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.  If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (2013).
The Board finds the Veteran is already in receipt of the earliest possible effective date for both his bilateral hearing loss as the June 10, 2011, effective date assigned is the date the Veteran’s claim for benefits was received.  A thorough review of the claims file shows no written communication by either the Veteran or his representative evidencing any intent to seek compensation disability benefits for his now service-connected bilateral hearing loss.
The claims file does not contain VA medical records documenting the Veteran’s bilateral hearing loss prior to June 10, 2011.  However, even if such records did exist, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability.  Lalonde v. West, 12 Vet. App. 377 (1999). Similarly, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition.  Crawford v. Brown, 5 Vet. App. 33 (1995). Therefore, the presence of any treatment records dated before June 10, 2011, cannot serve as the basis for an earlier effective date for the award of service connection.
As there is no claim of service connection prior to June 10, 2011, the preponderance of the evidence is against the claim for entitlement to an earlier effective date. 
REASONS FOR REMAND
Entitlement to an initial compensable disability rating for bilateral hearing loss
The record contains a December 2012 private audiogram report.  However, there is no indication in the report that the Maryland CNC speech discrimination test was used.  38 C.F.R. 4.85.  The Court has held if a private audiogram does not specifically identify whether the speech discrimination testing performed was the Maryland CNC test, the claim must be remanded to ask the private audiologist to clarify what test was used, unless it can be shown the private test would not support an increased rating even if considered.  See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011); 38 C.F.R. § 19.9 (a).
In this case, the Veteran could be entitled to a higher 10 percent disability rating for his hearing loss if the December 2012 private audiogram report included speech discrimination testing using the Maryland CNC.  As such, remand is needed for clarification on what test was used.
Since the claims file is being returned it should be updated to include any outstanding VA treatment records.  See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).
 
The matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from August 2017 to the present.
2. Obtain clarification from the private examiner who conducted the Veteran’s December 2012 hearing evaluation on whether the speech discrimination test results were obtained using the Maryland CNC.
3. After the above development, and any additionally indicated development based on the response to the above has been completed, readjudicate the claim increased rating for bilateral hearing loss. 

 
M. E. Larkin
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jack S. Komperda, Associate Counsel 

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