Citation Nr: 0505696 Decision Date: 03/01/05 Archive Date: 03/15/05 DOCKET NO. 03-09 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an effective date earlier than June 12, 2001, for the grant of a 60 percent disability evaluation assigned to Meniere's syndrome, previously identified as bilateral hearing loss. REPRESENTATION Appellant represented by: Robert M. Kampfer, Attorney- at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. S. Knight, Counsel INTRODUCTION The veteran served on active duty from June 1979 to June 1985. This matter comes to the Board of Veterans' Appeals (Board) from a March 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. This matter was remanded by the Board in July 2004 for further development. The veteran appeared before the undersigned in a videoconference hearing conducted in January 2004. FINDINGS OF FACT 1. The RO has provided all required notice and obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran's claim of service connection for Meniere's syndrome was received by the RO on June 12, 2001. 3. In a rating decision dated in March 2002, the RO granted service connection for Meniere's syndrome and assigned a 60 percent disability evaluation with an effective date of June 12, 2001, the date of receipt of the initial claim. CONCLUSION OF LAW The criteria for an effective date prior to June 12, 2001, for the grant of a 60 percent disability evaluation for service-connected Meniere's syndrome have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). In letters dated in June 2001 and August 2004 letter, the RO notified the veteran of the information and evidence needed to substantiate and complete his claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also advised the veteran to submit or identify any additional information that he felt would support his claim. The August 2004 letter specifically stated that if the veteran had any evidence in his possession that pertained to his claim, it should be sent to VA. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). Here, it is noted that the original rating decision on appeal which granted service connection for Meniere's syndrome and assigned an effective date of June 12, 2001, was dated in March 2002, which is after the enactment of the VCAA. The veteran did receive a VCAA notice prior to the initial rating decision, as evidenced by the June 2001 letter noted above. The second VCAA notice was provided by the RO in August 2004, following a July 2004 Remand. The content of the notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). It is also noted that after providing the veteran the July 2004 VCAA notice and affording him the opportunity to respond, the RO reconsidered the veteran's claim, as evidenced by the November 2004 supplemental statement of the case (SSOC). In summary, the veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Therefore, to decide the appeal at this time would not be prejudicial to the veteran. Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004). In this case, the veteran's service medical records are on file and the RO obtained all post-service VA and private medical records identified by the veteran. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2004). Additionally, in this particular case, the RO made additional efforts to locate documents identified by the veteran in support of his earlier effective date claim. Moreover, the veteran has been afforded a pertinent VA medical examination in connection with his claim. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary in this case. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). Factual Background In February 1996, the veteran filed a claim of service connection for bilateral high frequency hearing loss and tinnitus. In a supporting statement, the veteran stated that certain noises made him feel dizzy and caused an imbalance in his equilibrium. The veteran also stated that his symptoms affected his speech and his motor skills. No mention was made of a claim of service connection for Meniere's syndrome. A Compensation and Pension Examination request from the VA Office in Fort Harrison, Montana, dated in September 1996 was entered into the Automated Medical Information Exchange (AMIE) of VA Medical Center in Fort Harrison in October 1996. The record further shows that the veteran failed to report for a VA examination scheduled for November 15, 1996. In a rating decision dated in January 1997, the RO granted service connection for bilateral hearing loss with a zero percent evaluation effective from February 1996, the date of receipt of claim. The veteran was notified in a letter dated in February 1997. There is no indication that the veteran did not receive the notification letter. A report of contact dated in January 1997 indicates that the veteran was scheduled for October 30 and November 1, 1996, examinations and had called and asked that the dates of the examinations be on the same day. It is noted that the veteran was to be rescheduled for his examinations. A statement from the veteran for a claim of service connection for Meniere's disease, to include vertigo and profound hearing loss was received on June 12, 2001. The claim also served as an increased rating claim for service- connected bilateral hearing loss. An audiology report dated in July 2001 from John A. Schvaneveldt, M.D., at the Great Falls Clinic reveals the veteran's history of balance problems since 1980. The veteran described symptoms of vertigo associated with ringing in both ears with sensations of fullness and pressure. Also noted is that the veteran had been seen previously at a VA facility for these symptoms and the possibility of Meniere's disease was apparently discussed. The veteran was placed on a month's trial of diuretics, but that did not seem to alleviate any of those symptoms. The assessment was recurrent episodes of tinnitus, fullness, ringing, and vertigo, compatible with Meniere's disease. The examiner noted that the veteran's symptoms have been persistent and unexplained. An Magnetic Resonance Imaging (MRI) was ordered to rule out any intracranial cause. In a follow-up report, the examiner noted that there were no abnormal findings from the MRI. The assessment was nonspecific etiology for vertigo, tinnitus, and balance problems on a chronic basis, exact etiology was unclear at that time. A statement dated in May 1996 from Christopher P. Smith, M.D., was received into the record in August 2001. The statement indicated that the veteran had been treated for symptoms of significant hearing loss, tinnitus and vertigo following severe noise exposure from gunfire and tank blasts. Dr. Smith noted that the veteran's constellation of symptoms was not specific for Meniere's disease, but his symptoms were unexplained secondary to high frequency hearing loss. Dr. Smith noted that audiogram findings were consistent with precipitous high frequency sensorineural hearing loss likely secondary to noise exposure in the past. With respect to the veteran's symptoms of vertigo, he was placed on a two-month trial of Dyazide. A statement from Dr. Smith dated in July 2001 is also of record that shows continuing symptoms of vertigo and hearing loss, with no indications of changes since 1996. A statement dated in July 2001 from Montana Medical Audiology reveals complaints of dizziness and imbalance with a longstanding history since 1981. Duplicates of the veteran's service medical records, received in August 2001, show complaints of dizziness and problems with his equilibrium, and profound hearing loss. In a letter from [redacted], received in August 2001, she stated that she had seen the veteran experience severe dizzy spells with nausea. Ms. [redacted] noted that the veteran had been unable to continue with his little league activities due to his severe symptoms. In a letter dated in August 2001 from "[redacted]", [redacted], General Manager wrote that the veteran had missed over 160 days of work since December 1999 due to illness with such symptoms as dizziness, headaches, and nausea. A December 2001 report from Cascade Audiology reveals the veteran's history of tinnitus, hearing loss, and symptoms of severe dizziness. It is noted that the veteran's hearing loss had been diagnosed as Meniere's disease. A VA examination report associated with an otolaryngology specialist examination dated in January 2002 shows that the veteran had developed a sudden onset of symptoms of fluctuating hearing loss, vertigo, tinnitus, and ear fullness bilaterally in 1989. He was placed on a course of diuretics at that time, which did not seem to address his symptoms. In the report, it is noted that since his separation from service, the veteran's symptoms continued to progress to the point where he had been incapacitated from performing work full-time. The veteran was diagnosed as having Meniere's disease beginning on active duty. The examiner stated that it was more likely than not that the veteran's condition was service related. Service connection for Meniere's disease with hearing loss, vertigo, and recurrent tinnitus was granted in a rating decision dated in March 2002 and assigned an evaluation of 60 percent effective from June 12, 2001, the date of claim. As Meniere's syndrome associates bilateral hearing loss in the same rating criteria, the issue of an increased evaluation for bilateral hearing loss was discontinued effective June 12, 2001. In March 2003, the veteran submitted a letter and a copy of a notice of a change of address dated in December 1996. An August 2003 printout from the Montana VA Medical Center shows the veteran's history of scheduled examinations and cancellations. Noted on this form is that the January 1997 report of contact with the Montana VA Adjudication division was consistent with the information regarding the scheduling of VA examinations in that the record showed that the veteran had called to have his examinations scheduled on the same days. The examinations were then rescheduled and the veteran was notified accordingly. A copy of VA Form 21-22 dated in February 1996 and submitted in December 2004 indicates that the veteran's previous representative (MVAD) was revoked in March 2003 when he appointed a private attorney. Analysis Law and Regulations: The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 2002); see also 38 C.F.R. § 3.400(o)(1) (2004). An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one- year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2) (West 2002); see also 38 C.F.R. § 3.400(o)(2) (2004); Harper v. Brown, 10 Vet. App. 125 (1997). The term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511 (1997). A claim is 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), 3.155 (2004). The regulation which governs informal claims, 38 C.F.R. § 3.155, provides as follows: (a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant . . . 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 1 year from the date it was sent to the claimant, it [the formal claim] will be considered filed as of the date of receipt of the informal claim. If a formal claim for compensation has previously been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization can be accepted as an informal claim for benefits. Acceptance of a report of examination or treatment as a claim for increase is subject to the payment of retroactive benefits from the date of a report or for a period of one year prior to the date of receipt of the report. 38 C.F.R. § 3.157 (2004). As to reports prepared by VA or the uniformed services, the date of receipt of such a claim is deemed to be the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital. 38 C.F.R. § 3.157(b)(1). For reports prepared by a non-VA hospital where the veteran was maintained at VA expense, the date of admission to the hospital is accepted as the date of receipt of claim if VA maintenance was authorized prior to admission. For all other reports, including reports from private physicians, laymen, and state and other institutions, the date of receipt of the reports is accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b). The veteran is disputing the effective date of June 12, 2001, assigned to the 60 percent evaluation for his service- connected Meniere's disease. In support of his claim, the veteran has submitted a copy of a letter dated on December 6, 1996 attached to a change of address. He stated that he appeared before a Notary Public for the State of Montana and signed off on the letter on December 6, 1996. The veteran maintains that he addressed the letter to the Department of Veterans Affairs at Fort Harrison, Montana, and that it should have been delivered in the normal course of mail delivery. The veteran contends that in this letter, he stated that he wished to expand his application for benefits to include Meniere's disease and tinnitus and indicated an "employability" issue as well. The veteran also maintains that a notice for a medical examination for which he did not appear had been sent to the wrong address, that is, to his former address, and that as a result, he was not properly notified of the examination. The veteran believes that the failure to be examined at that time was critical to the outcome of his claim, and that given that he has had no changes in his medical condition since 1996 to the date in which service connection for Meniere's disease was granted in 2001, had he had the opportunity to undergo the VA examination in 1996 as scheduled, service connection for Meniere's disease would have been granted at that time with the proper effective date. With respect to the letter dated in December 1996 attached to a change of address form, there is no evidence that such letter was ever associated with the claims file before its receipt by the VA in March 2003. The veteran's attorney sent a duplicate copy of this same letter in April 2003, which is stamped "DUPLICATE VA." Unfortunately, there is simply no indication that the duplicate letter was received into the record prior to March 2003. Regarding the veteran's address change in 1996, the record shows that an examination request dated in September 1996 from the RO in Fort Harrison was endorsed as having been put into the AMIE in October 1996. An AMIE notice dated in November 1996 shows that the veteran failed to report for the VA examination scheduled for November 15, 1996. Additionally, a report of contact dated in January 1997 indicates that the veteran contacted the RO to schedule his examinations for the same day. Subsequently, a rating decision dated in February 1997 was sent to the veteran to the address of record; that notice was not returned to the VA as undeliverable. The record supports that the address of record was correct in AMIE in 1996 when the veteran failed to report for a scheduled VA examination, as was the case in February 1997 at which time he was notified of the rating decision. None of these documents were returned by the U.S. Postal Service as undeliverable. Although medical records consistently report the progress of the veteran's same complaints of dizziness, hearing loss, and tinnitus, and service medical records show findings of the same complaints, the fact is that the claim of service connection for Meniere's disease was not received within a year following separation from service, and as such, the effective date of the veteran's claim cannot be any earlier than the date on which VA received the claim. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Although the veteran has attempted to provide evidence to the contrary, the record supports that the earliest date for the grant of the 60 percent evaluation for his service-connected Meniere's disease must be the date of receipt of his claim, that is June 12, 2001. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The evidence of record does not support entitlement to this benefit prior to that date. The veteran's claim for an earlier effective date than June 12, 2001, for the 60 percent evaluation is, therefore, denied. Although, the evidence compels the Board to deny an earlier effective date, the Board does not question the sincerity of the veteran's allegation concerning his intent in 1996. Unfortunately, there simply is no corroborative evidence supporting the veteran's contentions. ORDER Entitlement to an effective date earlier than June 12, 2001, for the 60 percent disability evaluation for service- connected Meniere's syndrome is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs