Citation Nr: 1800705	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  17-17 666	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to an effective date earlier than June 15, 2015, for the grant of service connection for bilateral hearing loss.

2.  Entitlement to an effective date earlier than June 15, 2015, for the grant of service connection for tinnitus.

3.  Entitlement to an effective date earlier than June 15, 2015, for the grant of service connection for psoriasis.

4.  Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss.

5.  Entitlement to an initial rating in excess of 10 percent for tinnitus.

6.  Entitlement to an initial rating in excess of 60 percent for psoriasis.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Stepanick, Counsel


INTRODUCTION

The Veteran served on active duty from June 1956 to January 1959.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

In a February 2017 rating decision, the RO increased the initial rating for the Veteran's service-connected psoriasis to 60 percent throughout the claim period.  However, as that increase did not represent a total grant of the benefits sought on appeal, the claim for increase remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

In September 2017, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to an initial rating in excess of 10 percent for bilateral hearing loss and entitlement to an initial rating in excess of 60 percent for psoriasis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1.  The Veteran's claim of entitlement to service connection for bilateral hearing loss was initially denied in January 2003; he did not appeal that decision or submit relevant evidence within one year of notification of the decision.

2.  VA next received correspondence from the Veteran regarding entitlement to service connection for bilateral hearing loss on June 15, 2015.

3.  On June 15, 2015, VA also received the Veteran's original claims of entitlement to service connection for bilateral tinnitus and psoriasis.

4.  The December 2015 rating decision on appeal granted service connection for bilateral hearing loss, tinnitus, and psoriasis, each effective June 15, 2015.

5.  For the entire appeal period, the Veteran is in receipt of a 10 percent rating, the schedular maximum under Diagnostic Code 6260, for his tinnitus.


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than June 15, 2015, for the grant of service connection for bilateral hearing loss have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).

2.  The criteria for an effective date earlier than June 15, 2015, for the grant of service connection for tinnitus have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).

3.  The criteria for an effective date earlier than June 15, 2015, for the grant of service connection for psoriasis have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).

4.  The criteria for an initial rating in excess of 10 percent for tinnitus have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Earlier Effective Dates

The Veteran is seeking effective dates earlier than June 15, 2015, for the grants of service connection for bilateral hearing loss, tinnitus, and psoriasis.  Regarding hearing loss, which was initially denied in a January 2003 rating decision, he has asserted that he is entitled to an effective date tied to the date of his original 2002 claim, because he received neither an August 2002 letter informing him of the information needed to substantiate that claim nor the January 2003 letter notifying him of the denial of that claim.  He has further asserted that failures, on the RO's part, to afford him a VA examination at that time and/or obtain certain records also warrant an earlier effective date.  Regarding the effective dates for the grants of service connection for tinnitus and psoriasis, the Veteran has asserted that, if he had known he was entitled to separate disability compensation benefits for those conditions, he would have filed service connection claims prior to 2015.

Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later.  38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017).  The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2), (r).

Unfortunately, following review of the record, the Board finds that there is no basis upon which to award effective dates earlier than the June 15, 2015, effective date already assigned for the grants of service connection for bilateral hearing loss, tinnitus, and psoriasis.

A.  Bilateral Hearing Loss

As was already noted, the Veteran filed an original claim of entitlement to service connection for hearing loss in 2002.  In a January 2003 rating decision, the RO denied that claim.  The Veteran next filed a claim of entitlement to service connection for hearing loss in June 2015, which was subsequently granted by the RO effective June 15, 2015-the date of receipt of his 2015 claim.  The record does not reflect, nor does the Veteran contend, that he initiated an appeal of the January 2003 rating decision, submitted new and material evidence within the applicable one-year appeal period, or submitted another claim after his 2002 claim but prior to June 2015.  Rather, he asserts that he was never informed that his 2002 claim had been denied and that, as a result, he should be entitled to the effective date associated with his 2002 claim.  

The Board is sympathetic to the Veteran's situation, but finds that the 2003 decision became final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.202, 20.1103; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  As a result, the appropriate effective date for the grant of service connection for bilateral hearing loss is June 15, 2015-the date of receipt of his reopened claim.  See 38 C.F.R. § 3.400(q)(2), (r) (2017).

In finding that the 2003 decision is final, the Board acknowledges that the Veteran testified, during his September 2017 Board hearing, that he never received the August 2002 letter that informed him of the information needed to substantiate his service connection claim or the January 2003 letter that notified him that his claim had been denied.  However, both letters were mailed to his address of record (provided on his January 2002 claim form), and there is no evidence to show that either letter was ever returned to the sender or marked as undeliverable.  The United States Court of Appeals for Veterans Claims has held that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties."  Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)).  The presumption of regularity with regard to the regular mailing of notice attaches if VA mails notice to the last address of record.  See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).  The mere assertion of non-receipt by an appellant is not enough to establish the clear evidence needed to overcome the presumption of regularity in the mailing of the notification letter.  Davis v. Principi, 17 Vet. App. 29, 36 (2003).  In this instance, the record does not contain any evidence that supports the Veteran's assertion that he did not receive the August 2002 letter informing him of the information needed to grant his claim or, more importantly, the January 2003 letter notifying him of the subsequent denial of that claim.  As his statements alone are insufficient to rebut the presumption of regularity in the administrative process, they do not negate the finality of the 2003 rating decision.

A claim that has been previously finally denied cannot preserve an effective date for a later grant of benefits based on a new application.  See 38 C.F.R. § 3.400(q)(2); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application.").  "The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim."  Sears v. Principi, 16 Vet. App. 244, 248 (2002).  Instead, if the Veteran wishes to be awarded an effective date based on the earlier claim that became final and binding, he must collaterally attack the prior decision and show there was clear and unmistakable error (CUE) in the prior denial of the claim.  Flash v. Brown, 8 Vet. App. 332, 340 (1995).  However, the Veteran has not, to date, alleged CUE in the January 2003 rating decision.  Furthermore, to the extent he intended his assertions that the RO failed to obtain certain records and failed to afford him a medical examination prior to issuing its 2003 decision to serve as such an allegation, the Board notes that VA's breach of its duty to assist cannot constitute CUE.  See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Caffrey v. Brown, 6 Vet. App. 377, 382 (1994).

In short, because the Veteran did not, following the January 2003 final denial of his claim of entitlement to service connection for hearing loss, file a claim to reopen until June 15, 2015, an effective date prior to June 15, 2015, for the award of service connection for hearing loss is not warranted.  The Board sympathizes with the Veteran regarding the inequities he believes have resulted from his not being awarded an effective date that is tied to the date of his original claim.  However, it is bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C. §§ 503, 7104 (2012); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  It further observes that "no equities, no matter how compelling, can create a right to a payment out of the United States Treasury which has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).  In light of the finality of the January 2003 rating decision that denied service connection for bilateral hearing loss, there is no basis upon which to assign an effective date earlier than the June 15, 2015, effective date already assigned by the RO.  See 38 C.F.R. § 3.400(r).  Accordingly, the Veteran's claim of entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss must be denied.

B.  Tinnitus and Psoriasis

Turning to the Veteran's claims of entitlement to effective dates earlier than June 15, 2015, for the grants of service connection for tinnitus and psoriasis, the Veteran has not asserted, nor does the record otherwise reflect, that he filed claims of entitlement to service connection for those disabilities prior to that date.  Rather, his sole assertion is that he would have filed such claims at an earlier time had he known that tinnitus and psoriasis were medical conditions for which he could potentially receive separate VA disability benefits.

The Board is sympathetic to the Veteran's assertion that he was previously unaware of his potential eligibility for disability benefits related to tinnitus and psoriasis, specifically.  However, "everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations," and those regulations "are binding on all who seek to come within their sphere, 'regardless of actual knowledge of what is in the regulations or of the hardship resulting from innocent ignorance.'"  Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) (quoting Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947)).  Further, VA is under no legal obligation to individually notify every potential claimant of his or her possible entitlement to VA benefits.  Lyman v. Brown, 5 Vet. App. 194 (1993).  In other words, the Veteran's lack of awareness of the various medical conditions for which he could receive service-connected disability benefits does not constitute a basis on which to award effective dates for the grants of service connection for tinnitus and psoriasis that are earlier than the date on which he initially filed his claims.

The Board understands the Veteran's frustration, but, again, it is bound by the law, and its decision is dictated by the relevant statutes and regulations.  As the claim application that VA received on June 15, 2015, was the Veteran's earliest claim seeking service connection for tinnitus and psoriasis, the awards of service connection for those disabilities cannot be effective prior to that date.  See 38 C.F.R. § 3.400.  Thus, the claims of entitlement to effective dates prior to June 15, 2015, for the grants of service connection for tinnitus and psoriasis must also be denied.

Increased Initial Rating for Tinnitus

Regarding entitlement to an initial rating in excess of 10 percent for service-connected tinnitus, the Board initially notes that, although the RO included that issue in the Veteran's appeal, there is no indication that he disagrees with the schedular rating, as opposed to the effective date, the RO assigned when it granted service connection for tinnitus.  Indeed, the Veteran has not, to date, presented any argument in support of entitlement to a rating in excess of the 10 percent schedular rating that is currently assigned.  In any event, 10 percent is the maximum schedular rating available for tinnitus.  Indeed, the version of Diagnostic Code 6260 in effect since June 13, 2003, provides that only a 10 percent evaluation can be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2017); see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming VA's long-standing interpretation of pre-June 13, 2003 Diagnostic Code 6260 as authorizing only a single, 10 percent rating for tinnitus, whether perceived as unilateral or bilateral).  As there is no legal basis upon which to award a higher schedular disability rating for tinnitus, the claim for a rating in excess of 10 percent for that disability on a schedular basis must also be denied.


ORDER

An effective date prior to June 15, 2015, for the grant of service connection for tinnitus is denied.

An effective date prior to June 15, 2015, for the grant of service connection for psoriasis is denied.

An effective date prior to June 15, 2015, for the grant of service connection for bilateral hearing loss is denied.

An initial rating in excess of 10 percent for tinnitus is denied.


REMAND

I.  Statement of the Case

In May 2016, the Veteran filed a timely notice of disagreement (NOD) with the initial rating the RO assigned when it granted service connection for psoriasis.  The RO subsequently increased the rating assigned for that disability to 60 percent throughout the claim period and stated that the award constituted a full grant of the benefits the Veteran was seeking.  However, the Veteran has since clarified that he believes he is entitled to an initial rating in excess of 60 percent for psoriasis under Diagnostic Code 7817.  See 38 C.F.R. § 4.118 (2017).  Thus, his appeal remains pending, and, as the RO has not yet issued a statement of the case (SOC) with respect to that issue, remand for issuance of an SOC is required.  See 38 C.F.R. § 19.9(c) (2017).

II.  VA Examination and Treatment Records

Turning to the claim of entitlement to an increased initial rating for bilateral hearing loss, in April 2017 correspondence and during his September 2017 Board hearing, the Veteran indicated that he wanted his hearing loss claim to be reevaluated in light of a March 2017 audiological evaluation he had received at VA.  He also testified during his hearing that he did not know whether his hearing had worsened since his most recent VA examination.  He explained that he had recently received new hearing aids and that he was not sure if they were working.

Review of the March 2017 VA evaluation the Veteran referenced reveals that speech recognition testing, only, was conducted at that time, because he had informed the clinician that he had undergone a "regular audio eval" at a VA facility in December 2016.  Unfortunately, the records associated with the December 2016 evaluation reflect that hearing aid testing, only, was conducted.  Additionally, although it appears that full audiometric testing was conducted during an October 2016 VA audiology appointment, only a summary of that testing is included in the associated treatment note.  

In light of the incomplete nature of the foregoing evidence, and as the Veteran indicated some uncertainty regarding the status of any recent worsening in his hearing, the Board finds that he should be afforded an additional VA examination prior to adjudication of his claim.  The full results of the October 2016 audiometric testing should also be sought, and ongoing VA treatment records should be associated with the claims file.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)
1.  Issue an SOC addressing entitlement to an initial rating in excess of 60 percent for psoriasis.  The Veteran is hereby notified that, following the receipt of the SOC concerning that issue, a timely substantive appeal must be filed if appellate review by the Board is desired.  If, and only if, a timely substantive appeal is filed, that issue should be returned to the Board for appellate review.

2.  Obtain (1) the full results of the VA audiological testing conducted on October 26, 2016 (to include copies of any relevant records viewable in Tools/Audiology Display, Vista Imaging, or any similar viewing tool); and (2)  any other outstanding VA treatment records dated since March 2017, including any relevant records available via the above viewing tools.

If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such.

3.  After the development requested in item 2 has been completed to the extent possible, schedule the Veteran for a VA audiological examination to address the current severity of his bilateral hearing loss.  The claims file must be reviewed by the examiner in conjunction with the examination.  All appropriate tests and studies should be conducted and the results reported in detail.  The examiner should acknowledge and, as necessary, reconcile with his or her own findings, the other audiological testing documented in the claims file, to include in the October 2015 VA examination report and in VA and private audiological treatment notes (see August 2014, October 2016, and March 2017 VA evaluations and March 2016 private evaluation).

In addition to objective test results, the examiner should fully describe the functional effects caused by the Veteran's hearing loss, including the effect of his hearing loss on his occupational and daily functioning.

4.  After completing the requested actions, and any additional action deemed warranted, readjudicate the claim of entitlement to an increased initial rating for bilateral hearing loss.  If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond.  Then, return the case to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 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. §§ 5109B, 7112 (2012).




______________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs