Citation Nr: 1643140 Decision Date: 11/10/16 Archive Date: 12/01/16 DOCKET NO. 12-19 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an effective date prior to July 17, 2002 for the grant of service connection for tinnitus. 2. Entitlement to an effective prior to August 17, 2001 for the grant of service connection for left ear hearing loss. 3. Entitlement to a rating in excess of 10 percent for tinnitus, to include on an extraschedular basis. 4. Entitlement to a compensable rating for left ear hearing loss. 5. Entitlement to a rating in excess of 30 percent for residuals of a left hand injury, including mild degenerative changes of the first metacarpophalangeal joint. 6. Entitlement to a rating in excess of 30 percent for pseudofolliculitis with tinea versicolor and myxomucoid rash, to include on an extraschedular basis. 7. Entitlement to a separate compensable rating for facial scarring. 8. Entitlement to a separate rating for scar of the right neck, residual myxomucoid cyst excision, currently rated as 10 percent disabling in combination with left hand injury scar. 9. Entitlement to special monthly compensation based on loss of use of the left hand. 10. Entitlement to a combined disability rating in excess of 80 percent for service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1970 and from July 1971 to December 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). With regard to the issues on appeal, the October 2010 rating decision granted service connection for left ear hearing loss, effective August 17, 2001 and assigned a non-compensable rating. In his notice of disagreement, the Veteran indicated that he disagreed with the effective date assigned as well as the non-compensable rating. The May 2012 Statement of the Case (SOC) and September 2015 Supplemental Statement of the Case (SSOC) addressed the appeals for an earlier effective date and entitlement to an increased rating for hearing loss as a single issue. As these issues are distinct matters, the Board has separated the issues as shown on the cover page. Moreover, as will be explained in detail in the Remand section below, the May 2012 SOC and September 2015 SSOC mischaracterized the hearing loss effective date issue on appeal. The issue has been amended on the cover page to reflect the correct characterization of the appeal as being for an effective date earlier than August 17, 2001 for service connection for left ear hearing loss. In a June 5, 2009 VA Form 9 and May 12, 2012 correspondence, the Veteran raised the issue of whether extraschedular ratings were warranted for his tinnitus and various skin conditions pursuant to 38 C.F.R. § 3.321 (b)(2015). Accordingly, those issues have been recharacterized as reflected on the title page to include extraschedular consideration. The Board notes that on his July 24, 2012 VA Form 9, the Veteran stated that he wanted to file a direct motion for clear and unmistakable (CUE) regarding the October 20, 2010 rating decision. The Veteran is advised that a motion for revision, or a CUE motion, may not be entertained until a decision is final. As the October 2010 rating decision is on appeal, it is not final and a CUE motion is premature. The issues of entitlement to increased ratings for tinnitus, hearing loss, pseudofolliculitis, and residuals of a left hand injury; entitlement to separate evaluations for right neck scar and facial scarring; entitlement to special monthly compensation based on loss of use of the left hand, and entitlement to a combined disability rating in excess of 80 percent; and entitlement to an effective date earlier than August 17, 2001 for the grant of service connection for left ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The earliest communication indicating intent to file a claim for service connection for tinnitus was received on July 17, 2002. CONCLUSIONS OF LAW The requirements for an effective date prior to July 17, 2002 for the grant of entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1(p), 3.155, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by a letter in March 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the Veteran's assertion that he is entitled to an earlier effective date for the grant of service connection for tinnitus, the United States Court of Appeals of the Federal Circuit has held that once the underlying claims 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). The Veteran's service treatment records, service personnel records, VA and private treatment records, as well as his VA examination reports are of record. The Board acknowledges that it is remanding the Veteran's increased rating claims to obtain outstanding VA treatment records and any available updated private treatment records. However, the Veteran is not prejudiced by the absence of those records as the outstanding records are not pertinent to the Veteran's earlier effective date claims since the law is dispositive on these issues. See 38 C.F.R. § 3.400 (2015) (stating the effective date of an award will be the date of receipt of the claim or the date entitlement arose, whichever is the later). Accordingly, there is no prejudice to the Veteran with proceeding to adjudicate the earlier effective date claims on the current record. Accordingly, the Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim being adjudicated at this time. Earlier Effective Date Generally, the assignment of an effective date is governed by 38 U.S.C.A. § 5110, which states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application for said benefits. 38 U.S.C.A. § 5110(a) (West 2014). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation or date entitlement arose. 38 C.F.R. § 3.400(b)(2) (2015). The Board notes that 38 C.F.R. § 3.155 was recently amended. See 79 Fed.Reg. 57660 (Sept. 25, 2014). However, for purposes of this appeal, a "claim" or "application" 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). Additionally, a report of examination or hospitalization will be accepted as an informal claim for increase if the report relates to a disability for which service connection has been established. See 38 C.F.R. § 3.157(b) (2010). As to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, the United States Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C.A. § 5110(a) (West 2014). In DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011), the Court stated that "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." Accordingly, if a claimant filed a claim for benefits for a disability before he or she actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). An October 2010 rating decision granted service connection for tinnitus, effective July 17, 2002. The Veteran disagreed with the assigned effective date. As noted above, the effective date is the later of the date of claim or the date entitlement arose. The Veteran is competent to report ongoing tinnitus since his discharge from active service. Accordingly, in the present case, the effective date turns on the Veteran's date of claim. After thoroughly reviewing the record, the Board finds that prior to July 17, 2002 there is no evidence for any previous pending claims for service connection for tinnitus. The Veteran asserts that his report of "a little stinging in his right ear" at his VA examination, which was noted on the February 5, 1971 VA Form 21-2545, constituted a pending informal claim. In the alternative, he argues that he had various hearing loss claims prior to July 17, 2002, which should have been broadly construed to include tinnitus. With regard to the Veteran's assertion that the February 5, 1971 report of medical examination constituted an informal claim, in the present case the referenced report cannot serve as an informal claim. Under 38 C.F.R. § 3.157 (1967),which was in effect at the time of the asserted claim, a report of examination or hospitalization by VA can constitute an informal claim, but only when a formal claim for pension or compensation has been previously disallowed for the reason that the disability is not compensable in degree. The Veteran's tinnitus claim had not been adjudicated prior to October 2010. Accordingly, the report of examination cannot constitute an informal claim. Additionally, the mere presence of medical evidence indicating a current diagnosis or treatment for a condition does not establish intent on the part of a Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). In the absence of evidence of intent to seek service connection for tinnitus, the medical evidence of record indicating the presence of tinnitus cannot constitute a pending informal claim of entitlement to service connection for tinnitus. The Board acknowledges the Veteran's assertion that his hearing loss claims prior to July 17, 2002 should have been broadly construed to include hearing impairment caused by tinnitus. However, hearing loss and tinnitus are different conditions marked by differing symptoms and, for VA purposes, they are treated distinctly. See 38 C.F.R. § 4.85 (evaluation of hearing impairment), with 38 C.F.R. § 4.87, Diagnostic Code 6260 (tinnitus, recurrent) (2015). Moreover, the Veteran's hearing loss claims do not evidence any intent to seek service connection for tinnitus. Specifically, while he reported stinging in his right ear at his February 1971 examination and ringing in his ears at his January 1989 examination, his communications requesting compensation for hearing loss did not reference tinnitus, stinging or ringing in his ears, or auditory symptoms other than decreased hearing. Accordingly, the Board finds his statements cannot be reasonably construed as a claim for tinnitus. Finally, the Board acknowledges that in various correspondences the Veteran has asserted that VA's failure to adjudicate his informal tinnitus claims was clear and unmistakable error (CUE). While the Veteran cited a February 2, 1971 VA Form 21-2545 as an improper denial of his claim, that document was a report of medical examination not an adjudication of any claim. The Veteran has not identified a specific rating decision that he believes contained CUE regarding his tinnitus claim. It is unclear, which, if any, specific rating decision the Veteran is referencing. As any motion for revision based on CUE must be plead with specificity, the Board cannot construe the Veteran's statement as a reasonably raised CUE motion. Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994) (stating where there are multiple decisions, a failure to specify the dates of the decision being collaterally attacked, renders the pleading of CUE insufficient). Accordingly, absent a finding of CUE, which has not been reasonably raised, and certainly not pleaded with specificity, the earliest possible effective date for entitlement to service connection for tinnitus is July 17, 2002, the date the Veteran's claim for tinnitus was received. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). ORDER An effective date earlier than July 17, 2002, for the award of service connection for tinnitus, is denied. REMAND The Board finds that further action is necessary prior to appellate review. With respect to the claims for increased ratings for tinnitus, hearing loss, left hand disability, skin disability, facial scar and neck scar, and the claim for special monthly compensation for loss of use of the left hand, remand is needed for further development. In this regard, the record indicates that there are outstanding VA treatment records. Specifically, a September 11, 2015 dermatology clinic record indicated that the Veteran should return for a follow up appointment in approximately January 2016 and a September 16, 2015 record indicated that he had an appointment scheduled on September 24, 2015. Additionally, a January 30, 2015 non-VA care coordination record indicates that the Veteran was referred for fee-basis treatment with Dr. L. K. of Cleveland Clinic. The note does not indicate the condition for which the Veteran was referred for treatment and subsequent VA treatment records do not document that treatment. As the Board cannot exclude the possibility that the aforementioned records may be relevant to the Veteran's pending appeals, on remand such records should be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (stating VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). As the appeal concerning the combined evaluation assigned for service connected disabilities is intertwined with the claims for increased ratings, such matter must also be remanded. Turning to the appeal for an earlier effective date for the grant of service connection for left ear hearing loss, as noted in the Introduction, the Board notes that in the May 2012 SOC and September 2015 SSOC, the RO mischaracterized the appeal as entitlement to an effective date earlier than November 9, 1977 for bilateral hearing loss. By way of history, an October 1979 Board decision denied service connection for bilateral hearing loss because current hearing loss was not shown. In a May 2003 decision, the Board determined that the 1979 Board decision was a product of CUE in denying service connection for right ear hearing loss, as such disability was shown on a 1998 VA examination. That decision granted service connection for right ear hearing loss. However, the 2003 Board decision determined that the denial of service connection for hearing loss in the left ear was not clearly and unmistakably erroneous. The Veteran filed various motions for reconsideration, which were denied, and eventually filed an appeal to the United States Court of Appeals for Veterans Claims. However, his appeal was dismissed for lack of jurisdiction in an October 15, 2004 Court Order. Therefore, the May 2003 Board decision became final. 38 U.S.C. § 7104(b), 38 C.F.R. § 20.1100 (2002); currently, 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2015). A December 2003 rating decision implemented the grant of service connection for right ear hearing loss effective November 9, 1977, and assigned a noncompensable (0 percent) evaluation. The Veteran disagreed with the evaluation assigned, but did not appeal the effective date. Accordingly, the December 2003 rating decision is final with respect to the effective date assigned for the grant of service connection for the right ear. An August 2009 Board decision denied a compensable rating for right ear hearing loss, and such decision is final. Accordingly, there is no basis in law permitting the RO to assign an effective date for left ear hearing loss based on a 1977 or earlier claim, as the claims have been finally denied by the Board and the appeal of the 2003 Board decision was dismissed by the Court. Nor is there a basis in law for the RO to place the effective date of service connection for right ear hearing loss into appellate status. In the October 2010 rating decision, the RO specifically granted an effective date of August 17, 2001 for the award of service connection for left ear hearing loss. Hearing loss is assigned ratings based on bilateral impairment when both ears are service connected; thus, when the RO granted the left ear, it merely changed the designation on the Code Sheet from right ear hearing loss to bilateral hearing loss. As the Veteran's hearing loss still did not rise to a compensable level, even though it was now being rated bilaterally rather than the right ear only, the RO did not need to change the evaluation assigned and therefore left the original 1977 effective date that pertained only to the right ear, in place. It is clear from the narrative portion of the rating decision, however, that the effective date for service connection of the left ear is from the August 17, 2001 date of claim. In the SOC, the RO misconstrued the code sheet as establishing a 1977 effective date for the left ear, which was clearly not the intent of the rating decision narrative and violates prior Board decisions specifically denying service connection for left ear hearing loss based on the 1971 and 1978 RO denials of hearing loss. By changing the issue to an earlier effective date for bilateral hearing loss, the SOC also erroneously placed the right ear hearing loss effective date at issue as well, when such matter is also final and not subject to appeal. See Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (recognizing VA's administrative (RO)-judicial (BVA appellate) review scheme, and declining to interpret a regulation in such a way that would, counter to that scheme, "oddly, permit an inferior [adjudicatory tribunal] to collaterally review the actions of a superior" appellate tribunal); see also Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for an earlier effective date is a nullity). Thus, the May 2012 SOC contains a material defect in the characterization of the left ear earlier effective date issue that was continued in the September 2015 SSOC. As the SOC and SSOC did not address the proper issue on appeal-whether an effective date earlier than August 17, 2001 is warranted for the grant of service connection for left ear hearing loss-issuance of an SSOC is necessary to cure this material defect and to provide appropriate due process as to the correct issue on appeal. 38 C.F.R. § 19.31(b)(2),(3) (an SSOC will be furnished when there is a material defect in the SOC or prior SSOC, or for any other reason the SOC or prior SSOC is inadequate); see also McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009) ("[T]he Board, as the final trier of fact, is not constrained by favorable determinations below."). Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records from September 16, 2015 to present, as well as the fee basis treatment records from Dr. L. K. referenced in the January 30, 2015 non-VA care coordination record. If any requested records cannot be obtained, the Veteran should be notified of such. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for the disabilities on appeal. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. 3. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims, to include considering whether extraschedular referral is warranted for the Veteran's tinnitus and skin disabilities. In addition, the AOJ must adjudicate the issue of entitlement to an effective date earlier than August 17, 2001 for the grant of service connection for hearing loss. If the benefits sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are 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 2014). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs