Citation Nr: 1334519	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  10-06 176	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an effective date earlier than May 27, 2008, for the assignment of a 30 percent evaluation for bilateral hearing loss.

2.  Entitlement to an increased rating for bilateral hearing loss, currently evaluated as 30 percent disabling.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

R. Williams, Associate Counsel


INTRODUCTION

The Veteran had active military service in the Army from September 1965 to September 1968, including a period of service in Vietnam from February 1968 to September 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In November 2012, the Veteran testified before the undersigned.  A copy of the hearing transcript has been associated with the claims file.

The issue of entitlement to an increased rating for bilateral hearing loss, currently evaluated as 30 percent disabling, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center, in Washington, DC.


FINDINGS OF FACT

1.  In an unappealed decision issued on August 16, 2007, the AOJ granted service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective October 12, 2006, the date of the Veteran's service connection claim.  

2.  The Veteran has not asserted that the AOJ's August 2007 rating decision, which assigned a noncompensable rating for his bilateral hearing loss effective October 12, 2006, is clearly and unmistakably erroneous.

3.  The Veteran did not seek a higher rating for his bilateral hearing loss until May 27, 2008, when he filed a claim seeking an increased rating for this disability.

4.  In an October 2008 rating decision, the AOJ increased the disability rating assigned for the Veteran's bilateral hearing loss to 30 percent, effective May 27, 2008, the date his claim for an increased rating was received.  

5.  There is no evidence dated between the AOJ's August 16, 2007, rating decision and the Veteran's May 27, 2008, claim for an increased rating establishing that the Veteran's bilateral hearing loss warranted a 30 percent disability rating.


CONCLUSIONS OF LAW

An effective date earlier than May 27, 2008, for the award of a 30 percent evaluation for bilateral hearing loss is not warranted.  38 U.S.C.A. §§ 5110, 7105 (West 2002); 38 C.F.R. § 3.400 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Significantly, however, the United States Court of Appeals of the Federal Circuit (Court) has held that, with regard to claims for an earlier effective date, once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  

Regarding the duty to assist, the Board concludes that, to the extent possible, all relevant evidence necessary for an equitable resolution of the Veteran's earlier effective date claim has been obtained.  Specifically, the Veteran has been afforded four VA examinations assessing his bilateral hearing loss, and all available evidence relevant to the earlier effective date issue on appeal has been associated with the claims file, including his service treatment records, Social Security Administration records, and VA treatment records dated from August 2006 to January 2010.  

In making this determination, the Board acknowledges that the claims file does not contain VA treatment records dated since January 2010.  Significantly, however, the Board finds that, insofar as these records would merely document the severity of the Veteran's bilateral hearing loss since January 2010, these records are not relevant to the determination of whether the Veteran is entitled to an effective date prior to May 27, 2008.  In this regard, the Board highlights that the issue of entitlement to an effective date prior to May 27, 2008, turns on what the evidence prior to this date shows.  As such, a remand for these records is not required to allow for a fair and just disposition of the Veteran's earlier effective date claim.  In support of this determination, the Board notes that the duty to assist does not include searching for evidence, which even if obtained, would make no difference in the end result.  Allday v. Brown, 7 Vet. App. 517, 526 (1995) (quoting Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Soyini v. Derwinski, 1 Vet. App. 541 (1991) (declining to require strict adherence to technical requirements and impose additional burdens on VA when there was no benefit flowing to the claimant).  

As a final matter regarding the duty to assist, the Board observes that the Veteran had the opportunity to testify in support of his earlier effective date claim at his November 2012 Board hearing.  38 C.F.R. § 20.700(a) (2013).  The transcript of that proceeding reflects that the undersigned set forth the issue on appeal at the start of the hearing, then focused on the elements required to substantiate this claim.  The undersigned also sought to identify any further development required with regard to this claim.  Through these actions, the undersigned satisfied the duties of a Veterans Law Judge to explain fully the issue on appeal and suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board).  Notably, the Veteran has not alleged, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or committed other prejudicial error.  Moreover, there is no indication that the Veteran was otherwise denied due process during his Board hearing.  

In light of the foregoing, the Board finds that the duties to notify and assist have been satisfied with respect to the matter decided herein and, thus, appellate review may now proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II.  Earlier Effective Date 

The Veteran argues that an earlier effective date for the 30 percent evaluation assigned for his bilateral hearing loss is warranted because he has had this disability since service.  See Board Hearing Tr. at 4-5.  Thus, he essentially contends that the effective date of the 30 percent rating assigned for his bilateral hearing loss should relate back to his discharge from service in September 1968.  

The basic facts of this case are not in dispute.  The Veteran was initially granted service connection for bilateral hearing loss in a rating decision issued in August 2007, and was assigned a noncompensable evaluation, effective October 12, 2006 (i.e., the date of his service connection claim).  The Veteran was notified of this decision by a letter dated August 16, 2007.  As discussed in more detail below, he did not appeal.  Thereafter, in May 2008, the Veteran submitted a claim for an increased rating for his bilateral hearing, asserting that this condition had worsened since his last rating decision.  See Veteran's May 27, 2008, VA Form 21-4138 ("Statement in Support of Claim").  Subsequently, in an October 2008 rating decision, the AOJ increased the Veteran's disability rating to 30 percent, effective May 27, 2008, the date that the Veteran filed his increased rating claim.  The Veteran now disagrees with the effective date assigned for the 30 percent evaluation of his bilateral hearing loss.    

The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o).  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 thereof."  38 U.S.C.A. § 5110(a) (West 2002).  This statutory provision is implemented by regulation, which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1) (2013).  An exception to the 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 this regard, 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, otherwise the date of receipt of the claim."  38 U.S.C.A. § 5110 (b)(2) (West 2002); see also 38 C.F.R. § 3.400(o)(2) (2013).  The phrase "otherwise, date of receipt of claim" applies only if a factually ascertainable increase in disability occurred more than one year prior to filing the claim for an increased rating.  Harper v. Brown, 10 Vet. App. 125 (1997).  Moreover, 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.  See Hazan v. Gober, 10 Vet. App. 511 (1997).

The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA.  38 C.F.R. § 3.1(r) (2013).  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 (2013).  The regulation that governs informal claims, 38 C.F.R. §3.155, provides that 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.  Id.  When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim.

Further, under 38 C.F.R. §3.157(b)(1), an informal claim may consist of a VA report of examination or hospitalization.  Under this regulatory provision, the date of the VA outpatient examination or hospital admission will be accepted as the date of receipt of a claim if such a report relates to examination or treatment of a disability for which service connection has previously been established.  Moreover, under 38 C.F.R. §3.157(b)(2), an informal claim may consist of evidence from a private physician or layman.  Under this regulatory provision, the date of receipt of such evidence will be accepted as the date of receipt of a claim when the evidence furnished by, or on behalf of, the claimant is within the competence of the physician or lay person and shows the reasonable possibility of entitlement to benefits.   

In this case, the Veteran does not contend, nor does the evidence otherwise show, that the Veteran appealed the AOJ's August 2007 rating decision.  In this regard, the Board acknowledges that the Veteran submitted his May 27, 2008, claim for an increased rating for his bilateral hearing loss within one year of the date of mailing of the AOJ's August 2007 decision (i.e., within the time limit for filing a Notice of Disagreement).  See 38 C.F.R. §20.302 (a) (2013).  Notably, however, the Board finds that the Veteran's May 27, 2008, statement does not constitute a Notice of Disagreement.  

Pursuant to 38 C.F.R. § 20.201, written communication from a claimant (or his or her representative) expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result will constitute a Notice of Disagreement.  While special wording is not required, the Notice of Disagreement must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review.  Id.  If the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified.  Id.  In this regard, in Ortiz v. Shinseki, 23 Vet. App. 353 (2010), the Court stated that, "finding that a statement constitutes a Notice of Disagreement merely requires finding 'terms that can be reasonably construed as a desire for appellate review.'"  Ortiz v. Principi, 23 Vet. App. 353, 358 (2010) (citing Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed.Cir.2002)).  

Here, the Veteran did not express disagreement with the AOJ's August 2007 rating decision or a desire for appellate review in his May 27, 2008 statement.  Rather, in this statement, he explicitly reported that "[he] would like to open a claim for an increase in his [service-connected] hearing condition ... [he] feels that his condition has worsened since his last rating decision."  Insofar as the Veteran specifically stated that his condition had worsened since the August 2007 determination, this statement cannot be reasonably construed as disagreement with the effective date or disability rating assigned in the AOJ's August 2007 rating decision.  Moreover, insofar as the Veteran clearly stated that he was requesting to "open a claim" for an increased rating, this statement cannot be reasonably construed as expressing a desire for appellate review.  Therefore, the Board finds that the Veteran's May 27, 2008, statement constitutes a new claim, rather than a Notice of Disagreement.   

Accordingly, the Board concludes that the Veteran did not appeal the AOJ's August 2007 rating decision, which granted service connection for bilateral hearing loss and assigned a noncompensable evaluation, effective October 12, 2006.  Thus, absent clear and unmistakable error in the AOJ's August 2007 decision, which the Veteran does not allege, this determination is final.  38 U.S.C.A. §§ 7103(a), 7104, 7111, 7266 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104, 20.1403, 20.1404 (2013); see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (barring de novo consideration of effective dates after finality attached to a VA decision).  Since this decision is final, the question becomes whether an earlier effective date is assignable between August 16, 2007 (i.e., the date of mailing of the last final decision), and May 27, 2008 (i.e., the date of his claim for an increased rating).  

A careful review of the evidence of the record fails to show that, following the AOJ's August 16, 2007, decision, the Veteran filed either a formal or informal claim prior to May 27, 2008.  In this regard, the Board notes that there is no medical evidence pertaining to the Veteran's bilateral hearing loss dated between the AOJ's August 2007 decision and the Veteran's May 2008 claim.  Thus, it cannot be said that there is an earlier informal claim for an increased rating prior to May 27, 2008.  Moreover, as there are no treatment reports of record during this period of time, it is not factually ascertainable that the Veteran's service-connected bilateral hearing loss disability met the criteria for the higher 30 percent rating prior to May 27, 2008.  Further, there is simply no written communication of record showing an intent to file a claim for an increased rating during this time period.  

In light of the foregoing, the Board finds that, in assigning May 27, 2008, as the effective date for the increased evaluation, VA has assigned the earliest possible effective date for the 30 percent rating for the Veteran's bilateral hearing loss.  Therefore, it follows that an effective date prior to that time must be denied.  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 Veteran's claim, that doctrine is not applicable.  38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001).  


ORDER

Entitlement to an effective date prior to May 27, 2008, for the grant of a 30 percent disability rating for bilateral hearing loss is denied


REMAND

The Veteran also seeks entitlement to an increased rating for his service-connected bilateral hearing loss, currently evaluated as 30 percent disabling under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100.  Before the Board can adjudicate this claim, however, additional development is required.  The Board will discuss each of its reasons for remand in turn. 

I.  VA Treatment Records

A review of the Veteran's claims file indicates that records from the Atlanta, Georgia VA Medical Center remain outstanding.  Specifically, during the Veteran's November 2012 Board hearing, he reported receiving regular VA treatment for his bilateral hearing loss throughout the duration of this appeal.  Significantly, however, no VA treatment records dated since January 2010 have been associated with the claims file.  In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  As such, on remand, attempts should be made to obtain a complete copy of the Veteran's treatment records from the Atlanta VA Medical Center.  See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2013).  

II. VA Examination 

The Board also finds that another VA examination assessing the current nature, extent, and severity of the Veteran's service-connected bilateral hearing loss is necessary.  In making this determination, the Board acknowledges that the Veteran was afforded VA hearing loss examinations in May 2007, September 2008, October 2008, and April 2009.  Significantly, however, at his November 2012 Board hearing, the Veteran reported that his bilateral hearing loss has worsened since his most recent VA examination.  See Board Hearing Tr. at 5, 8-9.  In this regard, the Board notes that the most recent examination report of record is now more than four years old and does not contemplate the Veteran's recent contentions regarding the nature and severity of his symptomatology, or his additional treatment to date.  Accordingly, because the record contains insufficient medical evidence to determine the current nature and severity of his bilateral hearing loss, the Board finds that, on remand, another VA examination is necessary to resolve any inconsistencies in the record and to fully assess the current manifestations of the Veteran's hearing loss.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (holding that when the record does not adequately reveal the current state of the claimant's disability, the statutory duty to assist requires a thorough and contemporaneous medical examination, which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one).  

Accordingly, the case is REMANDED for the following actions:

1.  Make arrangements to obtain the Veteran's complete treatment records for bilateral hearing loss, including copies of any audiometric test results, from the Atlanta, Georgia VA Medical Center, dated from January 2010, forward.  If such records are unavailable, the claims file should be clearly documented to that effect.

2.  After the development requested in item (1) is completed, schedule the Veteran for an examination to assess the current nature, extent, and severity of his service-connected bilateral hearing loss.  The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) eFolders) should be made available to and be reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. 

Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted.  The examiner should specifically report the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz for both ears.

Finally, the examiner should discuss the degree of occupational impairment attributable to the Veteran's service-connected bilateral hearing loss.  In particular, the examiner should describe what types of employment activities would be limited because of the Veteran's service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent.  

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.  

3.  Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
NICOLE KLASSEN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs