Citation Nr: 23008530 Decision Date: 02/09/23 Archive Date: 02/09/23 DOCKET NO. 17-17 287A DATE: February 9, 2023 ORDER The reduction in rating from 100 percent to 10 percent, effective May 1, 2016, assigned for bipolar disorder was improper; therefore, a 100 percent rating is restored, effective May 1, 2016. New and material evidence having been received, the claim of entitlement to service connection for right ear hearing loss is reopened. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for dizziness with vertigo, to include as secondary to service-connected disabilities, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A rating decision proposing to reduce the rating assigned for bipolar disorder was issued on December 9, 2015; the accompanying notice informed the Veteran of the 60-day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days. 2. On February 24, 2016, the Veteran was notified of the rating decision implementing the final reduction of the rating assigned for bipolar disorder from 100 percent to 10 percent effective May 1, 2016. 3. The evidence of record does not show actual improvement in the Veteran's bipolar disorder or his ability to function under ordinary conditions of life and work. 4. In a final December 2006 rating decision, the RO denied entitlement to service connection for right ear hearing loss; the Veteran did not submit a Notice of Disagreement, no new and material evidence was submitted within one year of the decision, and the decision became final. 5. The evidence received since the final December 2006 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for right ear hearing loss. 6. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed right ear hearing loss is etiologically related to service. 7. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed dizziness with vertigo is due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The reduction in the rating for bipolar disorder from 100 percent to 10 percent, effective May 1, 2016, was improper, and restoration of the 100 percent rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105 (e), 4.2, 4.7, 4.10, 4.13, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 9432. 2. The December 2006 rating decision that denied the claim for service connection for right ear hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 3. New and material evidence has been received to reopen the claim for entitlement to service connection for right ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 5. The criteria for service connection for dizziness with vertigo are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2000 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2016, November 2016, and January 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues of entitlement to service connection for right ear hearing loss and a disorder manifested by dizziness, and a TDIU in December 2019 for further development. The Board is satisfied that there was substantial compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). By way of background, the Board previously found that the reduction of bipolar disorder from 100 percent to 10 percent effective May 1, 2016 was proper and denied restoration of the 100 percent rating in an August 2021 decision. The Veteran appealed the decision to the United Court of Appeals for Veterans Claims (Court). In a June 2022 order, the Court granted a Joint Motion for Remand (JMR) vacating the August 2021 decision and returning the issue to the Board for further consideration consistent with the JMR. The record contains an October 2020 Privacy Act request submitted by the Veteran's representative, requesting the January 2020 VA examinations conducted for dizziness and hearing loss. The Board considers this request duplicative, as the Veteran's representative already has access to the Veteran's entire electronic claims file, including the requested records, via the Veterans Benefits Management System (VBMS). Therefore, the representative's request for access to the identified documents has already been fulfilled and no further action is required Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Given the Board's favorable disposition of the claims, the Board finds that all notification and development action needed to fairly adjudicate this part of the appeal has been accomplished. Reduction 1. The reduction in rating from 100 percent to 10 percent, effective May 1, 2016, assigned for bipolar disorder was improper; therefore, a 100 percent rating is restored, effective May 1, 2016. The Veteran challenges the propriety of the reduction of his disability rating for bipolar disorder from 100 percent to 10 percent. In any case involving a rating reduction, the factfinder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420 21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). However, if the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). As an initial matter, the Board notes that VA benefits recipients are to be afforded greater protections in instances where a rating has been in effect at the same level for more than five years. 38 C.F.R. § 3.344 (c). The five-year period is calculated based on the effective date assigned for the award of the particular rating and the effective date of the actual reduction. Brown, 5 Vet. App. at 418 19. These additional protections only apply when the exact same rating has been in effect for five years or more. Simon v. Wilkie, 30 Vet. App. 403, 408 13 (2018). In this case, the Veteran was granted a 100 percent disability rating for bipolar disorder effective May 27, 2010. The reduction at issue in this appeal was made effective May 1, 2016. Thus, the Veteran's rating was in effect for more than five years at the time of the reduction. As such, the Board finds that the provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable here. The provisions of 38 C.F.R. § 3.344 (a) and (b) provide that, where a Veteran's schedular rating has been both continuous and stable for five years or more, the rating may be reduced only if the examination upon which the reduction is based is at least as full and complete as the examination used to establish the higher evaluation. A rating that has been in effect for more than five years will not be reduced on any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The rating agency must also take into consideration whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life and work. 38 C.F.R. § 3.344 (a) (b); see also Brown, 5 Vet. App. at 420 21; Faust v. West, 13 Vet. App. 342, 350 (2000). Additionally, the Board finds that the AOJ complied with the notice requirements under 38 C.F.R. § 3.105 (e) by issuing the June 2018 rating decision and accompanying notification letter which proposed the rating reduction for the Veteran's right wrist disability. As the notice requirements of 38 C.F.R. § 3.105 (e) have been met, no further discussion in this regard is necessary. By way of history, the Veteran was awarded a 100 percent for his bipolar disorder effective May 27, 2010 in a July 2010 rating decision. In a February 2016 rating decision, the rating was reduced to 10 percent, effective May 1, 2016. Subsequent rating decisions in April 2017 granted a higher 30 percent rating, effective March 27, 2017, followed by a December 2017 rating decision granting a higher 50 percent rating, effective August 23, 2017, a temporary 100 percent rating from September 13, 2017, and the 50 percent rating continued from November 1, 2017. A July 2018 rating decision granted another temporary 100 percent rating was awarded, effective February 21, 2019, and the 50 percent rating was continued from May 1, 2019. The July 2010 rating decision granted a 100 percent rating based on the Veteran's admission into a Psychosocial Rehabilitation Residential Treatment Program (PRRTP) for medication and mood stabilization on May 27, 2010 and a June 2010 VA examination. He had been released from jail and brought to the mental health center by his parents. He had been noncompliant with his medications and reportedly could not hold a job due to his racing thoughts, poor concentration, and inability to complete tasks. His other symptoms included helplessness, hopelessness, sadness, isolation, fear, low self-worth, elation, poor concentration, memory problems, paranoia, anxiety/restlessness, tearfulness, lack of motivation, and irritability. In the June 2010 VA examination, it was noted that he had been hospitalized in May 2010 after having suicidal thoughts without plan or attempt. The Veteran had racing thoughts, gambling and pornography addiction, difficulty focusing, inability to finish projects due to distractibility, mood swings, and difficulty sleeping. He also bought items he did not need. In a November 2015 VA examination, the Veteran was diagnosed with bipolar disorder, in full remission. The examiner found that his bipolar disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported that he got easily irritated, had mood swings (anxiety to depressed and lonely to fine), racing thoughts, and difficulties sleeping. He stated that his irritation got to the point that he hated work and that was another reason why he liked to work for himself. The Veteran reported that he continued to be single with no children. His parents, grandparents, brother, and family were very supportive. He also lived in his best friend's apartment building, so he could seem him often. The Veteran had started his own painting business in May 2015 and reported enjoying it quite a bit. It was small, so he could set his own schedule, such as taking time off when he got overwhelmed. He did not want to work for anyone and wanted a flexible schedule. He also worked at his family farm, including driving the tractor, fiddling in the shop, and working the fields every other day. The Veteran stated that he had physical difficulties at work, so he worked with family. If he got overwhelmed, he had support. He liked to shoot pool and play sports, but he did not have a lot of time to do it. He tried to keep himself busy with painting and the family farm. It was indicated that the Veteran had a fiduciary handling his finances. In a February 2017 correspondence, the Veteran's representative asserted that it appeared that the Veteran's 100 percent rating had been reduced based on one examination. The Veteran reported that he while he worked, he did not have racing thoughts. However, as soon as he was not working, the racing thoughts were present making it difficult for him to enjoy his down time. The representative contended that the fact that the Veteran managed to work did not mean that his symptoms were not present. In a March 2017 VA examination, the Veteran was diagnosed with bipolar disorder. The examiner found that the Veteran's bipolar disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. His symptoms included depressed mood, anxiety, chronic sleep impairment, and mild memory loss. Mental status examination showed that the Veteran was stressed, tired, and had lonely mood with difficulties sleeping due to it being "hard to shut his brain down." He was not presently in treatment or being prescribed medication for mental health even though he reported significant signs and symptoms of mental disorder with depression, anxiety, sleep issues, and some mild memory issues that affected social and occupational functioning. He stated that he had poor judgment and would do things spontaneously without thinking of the consequences, mostly with money. The Veteran had issues with spending money. In the past year, his car had been repossessed and he had been driving his father's pickup truck. He also used to have issues with gambling, but still had an addiction to pornography. He had difficulties handling stress. When stress got to him, he became depressed and had difficulties getting out of bed, missing a couple days a week. His manic-depression (ups and downs) "screw[ed]" up his social life. If he was "set off," he would get angry and yell at people. He would also get depressed and have difficulties getting out of bed The Veteran lived alone. He had no children and had never been married. He had close contact with his parents, extended family, and other relatives. The Veteran reported that he had been babysitting his brother's children the other night and that they had wanted him to stay and watch movies with them. However, he went home, stating that it was too much for him and that he wanted to be in his own environment. The Veteran participated in limited social activities, about twice a month. He reported that his social activity at that time of year was coaching youth soccer and that he was a "hermit" for the rest of the year. He had some days when it was difficult for him to get out of bed and a couple of days a week when he was not motivated to do anything. On days he was motivated, he liked to go golfing or spend time with family. However, he mostly tried to do activities where he was alone as he did not like crowds or being in big groups of people. The Veteran was a self-employed house painter for about two years. Before that, he worked on the family farm. In a November 2017 VA examination, the Veteran was diagnosed with bipolar disorder. The examiner found that the Veteran's bipolar disorder resulted in occupational and social impairment with reduced reliability and productivity. His symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. He also reported racing thoughts, difficulties concentrating, and distractibility. The Veteran was still single and had a friend with whom he played golf on occasion. He stated that he was unemployed and that he had stopped working because it became "too much." He was aware of his monthly bills and benefits, but had difficulty managing his money and tended to spend money frivolously. He believed that this was a manifestation of the manic phase of his bipolar disorder. In a May 2018 correspondence, the Veteran's representative noted that the Veteran's rating for bipolar disorder had been increased to 50 percent effective August 23, 2017 and continued from November 1, 2017 following a temporary 100 percent rating due to hospitalization over 21 days that was effective September 13, 2017. Further, he remained under a proposal to rate him as incompetent. In a May 2019 VA examination, the Veteran was diagnosed with bipolar disorder. The examiner found Veteran's bipolar disorder resulted in occupational and social impairment with reduced reliability and productivity. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long term memory, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The Veteran also reported symptoms of anger, guilt (due to disappointing his family), anhedonia, hopelessness, irritability, very compulsive spending, pornography addiction, excessive desire for sex, agitation, delusional thinking, paranoid ideation that people were talking about him, poor concentration, and racing thoughts. He reported "impaired thinking" of acting impulsively and compulsively and then regretting it afterwards. He had been so depressed in the past year that he had been isolating himself at home and his typical mood was described as anxiety. His parents came help him clean and "keep up on things." His most recent suicidal ideation was two weeks ago. The examiner found that the Veteran was not capable of managing his financial affairs give his long history of compulsive spending. The Veteran had stopped painting houses due to his diabetes, back problems, and bipolar disorder. He had been recently hospitalized for suicidal ideation. His gambling had improved with family support. He was with his parents daily, and they watched over him and let him know if he was declining. The Veteran lashed out at people who he thought did not want to be there for him, such as his problem. He was often sensitive to rejection and held grudges against people he thought had wronged him or had given up on him. While he typically maintained energy to complete his activities of daily living, he was occasionally too tired to do so. There were also times when he did not call his clients for his painting jobs because he did not feel like getting out of bed. He also had difficulties leaving his home or contacting clients. In an October 2022 correspondence, the Veteran's representative contended that the Veteran's 100 percent should be restored and described the history of the Veteran's increased ratings for his bipolar disorder after it had been reduced to 10 percent effective May 1, 2016. He contended that the prior Board decision had mischaracterized the 2015 examination. According to VA treatment records during this time period, the Veteran's psychiatric symptoms included anxiety, irritability, anger, racing thoughts, insomnia, difficulties sleeping, addiction to gambling and pornography, hopelessness or helplessness, depression, anhedonia, amotivation, decreased energy, poor concentration and attention, impulsive behavior, panic attacks, and isolation. While the records indicate that the Veteran had been employed, they also indicated that this employment was not always full-time or consistent. Even when he was a self-employed painter, the records indicated that he had difficulties finding and maintaining enough work to support himself. He worked for a grocery store in April 2020, but had to quit in August 2020 due to COVID-19 and his increased risk of getting the disease. The records showed that he had a fiduciary to manage his finances. The Veteran tended to have a close relationship with his family, especially his parents who provided a great deal of support. His primary leisure activity was golfing. It was noted that he had a girlfriend in September 2018, but he broke up with her shortly after his PRRTP treatment ended in April 2019. In August 2017, the Veteran was hospitalized for diabetic ketoacidosis. During this hospitalization, the Veteran reported feeling fatigued and tired due to financial issues and unemployment. He also spent about $10 to $15 a week on gambling. It was indicated that his bipolar depression may have contributed to his poor glucose control. Upon discharge, his parents expressed concerns about the Veteran's mental health. They shared photographs of his home which was messy (several pop bottles, trash, and clothes piled throughout the apartment) and reported recently visiting his home and taking out multiple bags of trash. His parents indicated that the Veteran had sold his furniture for money and were concerned that he was not managing his money well. They requested a chance a talk with the psychiatry department as they felt that his bipolar disorder was a big issue. The Veteran's father expressed his frustration about the Veteran being told that he no longer had bipolar disorder along the reduction in benefits and loss of fiduciary support. He indicated that the Veteran needed help coping with daily stresses and was concerned what would happen once he left the hospital. The Veteran was eventually discharged with the support of his parents. The Veteran was then hospitalized for his bipolar disorder (specifically the PRRTP program) from September 13, 2017 to October 19, 2017. He planned to get picked up by his parents at discharge and staying with them. Upon admission, the Veteran reported that he realized several months prior that he could no longer work due to his chronic back pain, anxiety, and fatigue due to insomnia. However, not being able to work triggered a depressive episode. After being discharged in August 2017, he moved in with his parents until he was admitted to the PRRTP program due to his depression, poor condition of his house, and inability to manage his diabetes. His mother expressed concerns over the Veteran's ability to manage his finances, medication, and home. She further stated that he needed oversight of his medications and would probably benefit from a fiduciary. In fact, on September 19, 2017, it was noted that the Veteran was unable to manage his insulin pump due to his psychiatric issues. The Veteran reported that he had his parents help him assess his finances, save money, and create an emergency fund. He also stated that he would do some painting for money, but was still stressed over financial issues and his ability to make a living given his physical and mental conditions. During his time in the PRRTP program, the Veteran endorsed the following symptoms: anxiety, poor concentration and focus, feeling overwhelmed, racing thoughts, impulsive behavior (gambling and pornography addiction), anhedonia, amotivation, decreased energy, and difficulty sleeping. On September 27, 2017, the Veteran left the property of the program without permission. He stated that he had been angry that he had not been given a pass, so he impulsively left with a peer. On October 11, 2017, it was noted that the Veteran had thrown a temper tantrum after a female peer left. He threw his phone on the ground and asked that the staff call the police, because he did not want her to leave. The Veteran was admitted for suicidal ideation from February 21, 2019 to March 11, 2019. He was then transferred to a PRRTP program from March 11, 2019 to April 23, 2019 for the exacerbation of his bipolar symptoms. In February 2019, the Veteran reported suicidal ideation with a plan, but indicated that he was afraid that if he did not get help, he would act on his suicidal thoughts. He also reported worsening anxiety, sleep disturbance, poor self-care, inability to perform daily chores or function at work, difficulties concentrating, racing thoughts, auditory hallucinations, isolation, and low energy. He had recently increased his working hours as a house painter and was unable to tolerate the increased stress. For the past month, he had been isolating himself at home, not tending to daily chores or showing up for his painting jobs. Sometimes, he would show up to work, but leave within a couple of hours due to inability to handle his stress. His racing thoughts made it difficult for him to focus. On March 12, 2019, The Veteran reported that he had problems with compulsive spending and pornography. His parents were his main support and "things f[e]ll apart" when they were not in town in the winter. He did not have friends. His stressors included legal issues from a hit and run and increasing his hours as a painter. He indicated he wanted a guardian to safeguard against his impulsive spending. In September and October 2019, the Veteran reported increased anxiety and stress due to working again. He felt that he needed a refresher through the PRRTP program and expressed his interest in a three to four month program in Marion, Illinois. In light of the foregoing, the Board finds that the evidence persuasively weighs against showing that there was actual improvement in the Veteran's bipolar disorder or in his ability to function under the ordinary conditions of life and work. In making this finding, the Board notes that it is well established that VA cannot reduce a veteran's disability rating without first finding that the service-connected disability has improved to the point that the veteran is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); see also Faust v. West, 13 Vet. App. 342, 349 (2000); Brown, 5 Vet. App. at 421. In this regard, the evidence of record must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The Board recognizes that the November 2015, March 2017, November 2017, and May 2019 VA examination findings do not appear to meet the rating criteria for a 100 percent rating under Diagnostic Code 9432. However, the Board observes that in a rating reduction claim, the central inquiry should be whether there was improvement in the service-connected disability, rather than whether the Veteran's symptoms had met the rating criteria for a specific percentage evaluation as in an increased rating claim. See Peyton v. Derwinski, 1 Vet. App. 282 (1991). In this case, the Board does not find that the Veteran's bipolar disorder has shown actual improvement at any time since the reduction took effect. Although the November 2015, March 2017, November 2017, and May 2019 VA examination findings showed that the Veteran's bipolar disorder did not result in total occupational and social impairment, they did show that the Veteran had difficulties working and maintaining his finances due to his impulsive behaviors. In fact, the May 2019 VA examiner found that the Veteran was not capable of managing his financial affairs give his long history of compulsive spending. Further, VA treatments records show that the Veteran was hospitalized twice for his bipolar disorder and that he continued to have difficulties functioning socially or working productively due to his bipolar disorders. The records also show that the Veteran had difficulties managing his diabetes mellitus to the point that he was hospitalized in August 2017 for diabetic ketoacidosis. As such, the Board does not find that the Veteran's bipolar disorder has shown actual, sustained improvement at any time during the appellate period, nor does the evidence demonstrate an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Accordingly, the Board finds that the reduction of the Veteran's rating for bipolar disorder from 100 percent to 10 percent was improper, and the 100 percent rating must be restored effective May 1, 2016. New and Material Evidence 1. New and material evidence having been received, the claim of entitlement to service connection for right ear hearing loss is reopened. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302(a). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117 18. In the December 2006 rating decision, the RO denied the claim for service connection for right ear hearing loss because it found that the evidence did not show that the Veteran had right ear hearing loss. The Veteran did not file a timely NOD and new and material evidence was not received within one year of the December 2006 rating decision. That decision is final. The Board also acknowledges that if additional, pertinent service records are associated with the file, VA will reconsider the claim according to 38 C.F.R. § 3.156 (c). Here, service medical and personnel records were added to the record after the December 2006 rating decision. However, the December 2006 rating decision clearly indicates that the service medical records were considered in the initial adjudication of the Veteran's claim for service connection for right ear hearing loss. The service personnel records are not pertinent to the question of entitlement to service connection for right ear hearing loss. Thus, the claim need not be considered under 38 C.F.R. § 3.156 (c). Since the Veteran's prior final denial in December 2006, the record includes October 2016, May 2017, and January 2020 VA examinations indicating that the Veteran had right ear hearing loss. The Board finds that these pieces of evidence are new as they were not previously of record and tend to relate to previously unestablished facts necessary to substantiate the underlying claim of service connection. Consequently, the claim of entitlement to service connection for right ear hearing loss is reopened Service Connection 1. Entitlement to service connection for right ear hearing loss is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as other organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). For those listed chronic disabilities, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a disability was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 70 (1994). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that his right ear hearing loss was caused by his in-service hazardous noise exposure. Military personnel records, including the Veteran's DD 214, show that the Veteran served as a supply management journeyman, which has a low probability of noise exposure. Service treatment records show that the Veteran worked on the flight line, so he was exposed to loud noises. As such, his in-service exposure to hazardous noise is conceded. The evidence, to include the October 2016, May 2017, and January 2020 VA examinations, clearly demonstrates that the Veteran has a current diagnosis for right ear hearing loss that comports with VA's definition under 38 C.F.R. § 3.385. Thus, the question remains whether the Veteran's current right ear hearing is etiologically related to his military service. Service treatment records do not show complaints of, treatment for, or a diagnosis of right ear hearing loss. In a November 2006 VA examination, the examiner found that the Veteran had left ear hearing loss for VA purposes, but not right ear hearing loss. The Veteran reported that he had noticed a decrease in his hearing over the past few years. The examiner noted that the Veteran worked beside the flight lines during his entire military career and opined that with the Veteran's history of military noise exposure, it was at least as likely as not that the Veteran's left ear hearing loss was due to his military noise exposure. In a July 2008, the Veteran indicated some hearing loss. In a January 2009 VA treatment record, he reported adequate hearing for testing conditions, but had difficulties hearing clearly in more noisy conditions. In a June 2009 VA examination, the examiner found that the Veteran did not have right ear hearing loss for VA purposes. The Veteran reported that his hearing loss interfered with hearing in noisy environments. In a June 2010 VA treatment record, the Veteran reported feeling like his hearing had worsened since his last check up two years prior. In a June 2010 VA examination, the examiner found that the Veteran did not have right ear hearing loss for VA purposes. In an October 2016 VA examination, the examiner found that the Veteran had right ear hearing loss for VA purposes. The examiner opined that it was less likely than not that that the Veteran's right ear hearing loss was due to his service. She noted that the Veteran had moderate high frequency hearing loss at 6000 Hertz upon enlistment and that there was no significant threshold between enlistment and separation in the right ear from 500 to 4000 Hertz. In a May 2017 VA examination, the examiner found that the Veteran had right ear hearing loss for VA purposes. The examiner opined that it was less likely than not that the Veteran's hearing loss was due to military service as there was no threshold shift in the right ear. In a January 2020 VA examination, the examiner found that the Veteran had right ear hearing loss for VA purposes and that its onset was in 2008. He noted the Veteran's military noise exposure was from warehouse, flight line, and forklifts, pre-service noise exposure was from farm equipment and growing up on the farm, and post-service noise exposure was from some farming and machinery. Recreational noise exposure was from ATV's. The examiner opined that the Veteran's right ear hearing loss was less likely than not due to his military service. He found that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which was objective evidence of no permanent auditory damage on active duty from conceded noise. Further, there was no report of or treatment for hearing decrease in the service treatment records or at separation. Although noise exposure was conceded and the relationship among noise, auditory damage, and hearing loss was well-established, auditory damage and HL were not conceded based on noise alone. There had to be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. Based on a careful review of the evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is approximately balanced that the Veteran's currently diagnosed right ear hearing loss is etiologically related to his military noise exposure. While the October 2016, May 2017, and January 2020 VA examiners found that the Veteran's right ear hearing loss was not due to service, the Board finds that the Veteran's statements that his hearing loss began during service to be credible. The Veteran is competent to report both the onset and continuation of hearing loss symptoms. Additionally, VA treatment records shortly after the Veteran's separation from service shows that he consistently reported hearing loss since service. Further, the Board finds that the VA examinations are inadequate regarding the etiology of the Veteran's right ear hearing loss as they are primarily based on the absence of documented hearing loss in active service. The Board notes that the absence of documented hearing loss while in service is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As such, the VA examinations have little probative value. See Nieves Rodriguez, supra; Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000). Therefore, the Board finds that based on the competent and credible statements regarding the onset and continuity of the Veteran's right ear hearing loss symptoms and the Veteran's in-service hazardous noise exposure, the evidence is in approximate balance regarding whether the Veteran's right ear hearing loss is etiologically related to service, and service connection for right ear hearing loss is warranted. Accordingly, resolving all reasonable doubt in favor of the Veteran, his service connection claim for right ear hearing loss is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for dizziness with vertigo, to include as secondary to diabetes mellitus, is granted. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened) by a service-connected disability. Id. The evidence of record, to include the April 2017 and January 2020 VA examinations, shows that the Veteran has a current diagnosis of dizziness with vertigo. The Veteran is currently service connected for bipolar disorder, diabetes mellitus with diabetic retinopathy, mechanical lumbar spine strain with degenerative arthritis, surgical scar status post lumbar disc arthroplasty, tinnitus, bilateral hearing loss, and bilateral lower extremity radiculopathy. Service treatment records show that the Veteran was treated for shakiness in June 2005 and it was posited that this was due to diabetes. Then in September 2005, the Veteran was taken to the hospital after experiencing dizziness and lightheadedness after running. He was diagnosed prediabetes and diabetes. In an October 2016 VA examination, the Veteran was not diagnosed with an ear or peripheral vestibular condition. The Veteran noted lightheadedness and dizziness after taking his pain pill and lightheadedness when going from lying down to sitting up. The latter persisted after a position change for one to two hours. Dizziness would occur at the same time, but only lasted a few seconds. He felt that his dizziness had become more frequent with tramadol. His lightheadedness began two months prior. The examiner opined that the Veteran's dizziness was not secondary to his diabetes mellitus. The Veteran had a disease consistent with benign paroxysmal positional vertigo confounded by tramadol. In an April 2017 VA examination, the Veteran was diagnosed with dizziness with vertigo. The onset of this condition was in 2016. The Veteran reported difficulties with positional changes causing him to have symptoms. The examiner found that the Veteran had a vestibular condition, specifically vertigo occurring more than once weekly for less than an hour. The functional impact of this condition was difficulty with changing positions and dizziness taking a few minutes to resolve. This affected his work due to mild balance disturbance. The examiner opined that that the medical evidence was insufficient to diagnose dizziness with vertigo as the Veteran's physical examination was normal. Further, it was not likely that his diabetes or retinopathy caused his vertigo, but rather his elevated uncontrolled blood sugars or lows that were causing the symptoms. In a January 2020 VA examination, the Veteran was diagnosed with dizziness due to low blood sugar. The onset was in 2006, which was when the Veteran was found to be diabetic. The examiner noted that the Veteran still became dizzy when his blood sugars became low and that it was in no way positional. Dizziness with low blood sugars occurred about once to twice a day. The Veteran also had vertigo with low blood sugars. Physical examination showed an abnormal Romberg test for unsteadiness and difficulty touching fingers to nose. The functional impact of this condition was that he could fall due to dizziness caused by low blood sugar. As such, the Veteran should not be allowed to work around heavy moving equipment or from heights. The examiner opined that the Veteran had no issues related to his claimed dizziness due to low blood sugar prior to military service. The onset of this condition was during service as documented in service treatment records. Dizziness was common in persons with diabetes. The examiner also found that the Veteran's dizziness was aggravated beyond its natural progression due to his diabetes. She noted that the Veteran had been prevented from using CGM and insulin pump which would provide better control of diabetes mellitus. In addition to the poorly managed diabetes control, the Veteran was prescribed Seroquel for his service-connected bipolar disorder at high doses. The biggest disadvantages of Seroquel were the potential long-term side effects, which included increased blood sugar. VA treatment records showed that the Veteran was prescribed tramadol for pain management, to include his chronic low back pain. They also showed that a symptom of low blood sugar, which was due to his diabetes mellitus, included dizziness. Based on a careful review of the evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is approximately balanced that the Veteran's currently diagnosed dizziness with vertigo is secondary to his service-connected disabilities. While the October 2016 and April 2017 VA examiners opined that the Veteran's dizziness was not secondary to his diabetes mellitus, the October 2017 VA examiner indicated that the Veteran had vertigo confounded by tramadol, a medication used to treat his low back disability, and the April 2017 VA examiner found that the Veteran's dizziness with vertigo was caused by his uncontrolled blood sugars, which was due to his diabetes mellitus. Additionally, the January 2020 VA examiner examined the Veteran, reviewed his medical records, and conducted medical research to support her opinions. Therefore, the Board finds that the evidence is in approximate balance regarding whether the Veteran's dizziness with vertigo is secondary to his service-connected disabilities, and service connection for dizziness with vertigo is warranted. Accordingly, resolving all reasonable doubt in favor of the Veteran, his service connection claim for dizziness with vertigo is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Board notes that it has restored the 100 percent rating for the Veteran's bipolar disorder. In Herlihy v. Principi, 15 Vet. App. 33, 35 (2001), the Court held that the grant of a schedular 100 percent disability evaluation moots the issue of any entitlement to TDIU after the effective date of that rating. However, VA has a duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 at the (s) rate. See Bradley, 22 Vet. App. at 294 (finding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). Of relevance here, the Court has specifically held that there could be a situation where a veteran has a schedular total rating for a single service-connected disability, but could establish entitlement to a TDIU rating for another service-connected disability or disabilities in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more. See 38 U.S.C. § 1114 (s); Bradley, 22 Vet. App. at 293; Buie, 24 Vet. App. at 248. The disability rating assigned to the Veteran's now service-connected right ear hearing loss and dizziness with vertigo may result in the Veteran being entitled to an SMC under 38 U.S.C. § 1114 (s). As such, the issue of entitlement to TDIU is inextricably intertwined with the rating assigned to the Veteran's right ear hearing loss and dizziness with vertigo when the grant of service connection is effectuated, and therefore must be remanded. The matters are REMANDED for the following action: Adjudicate the issue of entitlement to a TDIU after ratings have been assigned for the Veteran's now service-connected right ear hearing loss and dizziness with vertigo. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, Associate 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.