Citation Nr: 1801333 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-06 460A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an initial evaluation in excess of 80 percent for a bilateral hearing loss disability prior to October 1, 2015, and in excess of 40 percent since that date, to include whether the reduction of the evaluation of bilateral hearing loss from 80 to 40 percent was proper. 2. Entitlement to the assignment of an effective date earlier than April 15, 2013 for the grant of service connection for a bilateral hearing loss disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). 4. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another or based on housebound status. WITNESS AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served with the Special Philippine Scouts from April 1946 to March 1949. This case comes before the Board of Veterans' Appeals (Board) on appeal from adverse action by the above Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C. § 7107(e) (2012). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. A transcript of this 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.A. § 7107(a)(2) (West 2014). The Board observes that in a July 2013 rating decision, the RO denied the Veteran's application to reopen a service-connection claim for a gunshot wound of the right hand. In a letter dated October 22, 2013, the RO informed the Veteran that he had one year from the date of notice of this July 2013 decision to submit additional evidence for reconsideration, or to file a notice of disagreement. He did not do so. At the above-referenced August 2017 hearing before the Board, the Veteran through his son and an interpreter suggested there were outstanding records pertaining to his gunshot wound claim. If the Veteran wishes to file an application to reopen his service-connection claim for a gunshot wound of the right hand, he is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). The adjudication of the claim for an earlier effective date for the grant of service connection for bilateral hearing loss is set forth below. The remaining issues on appeal addressed in the REMAND portion of the decision below require additional development or processing and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for a bilateral hearing loss disability was denied by a March 2010 Board decision. 2. A request to reopen the claim for service connection for bilateral hearing loss was received on April 15, 2013. 3. There is no document of record which may be construed as a formal or an informal claim to reopen the previously denied claim of entitlement to service connection for a bilateral hearing loss disability between the notice of the March 2010 Board decision and the April 15, 2013, claim for that benefit. CONCLUSIONS OF LAW 1. The March 2010 Board decision denying service connection for bilateral hearing loss is final. 38 U.S.C.A § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2009). 2. The legal requirements for an effective date prior to April 15, 2013, for the grant of service connection for bilateral hearing loss not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(r) (2017). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Federal Circuit held that 38 U.S.C. § 5103(a) does not impose its notice obligations upon receipt of a notice of disagreement with the rating and effective date assigned by an AOJ for an award of benefits. As such, once the November 2013 rating decision was made awarding service connection, an effective date, and a rating for bilateral hearing loss, 5103(a) notice had served its purpose, as the claim had already been substantiated. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Sutton v. Nicholson, 20 Vet. App. 419 (2006). With respect to the duty to assist, as the resolution of a claim for an earlier effective date is necessarily based on the facts as they existed at the time the effective date in question was assigned, no additional development of such claims to fulfill this duty is necessary. See Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001). The Veteran asserts, in essence, that he is entitled to an earlier effective date for the grant of service connection for bilateral hearing loss based his assertion that he suffered from severe hearing loss related to service well before the effective date of the grant of service connection for bilateral hearing loss. In the instant case, service connection for bilateral hearing loss was denied by a March 2010 Board decision. In the absence of a successful petition based on clear and unmistakable error, which has not been filed in this case, a Board decision is final as to the evidence than of record, and the issue may only be reopened based on the receipt of new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing 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 prior 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 Veteran filed a request to reopen his claim for service connection for bilateral hearing loss on April 15, 2013. Based on a VA examination conducted pursuant to this request in October 2013 that included new and material evidence in the form of an opinion by the examiner that the Veteran's bilateral hearing loss was at least as likely as not related to service, a November 2013 rating decision granted service connection for bilateral hearing loss effective from April 15, 2013, the date of receipt of the petition to reopen. The Board has thoroughly reviewed the Veteran's claims file and concludes that notwithstanding his belief that service connection should be granted effective from a much earlier date, in light of the evidence of record received between March 2010 and April 2013, the Veteran's claim for an effective date prior to April 15, 2013, for a grant of service connection for bilateral hearing loss must be denied. Simply put, an effective date earlier than April 15, 2013, is inconsistent with the rules and regulations concerning effective dates for awards of compensation. In particular, under 38 U.S.C.A. 5110(a); 38 C.F.R.§ 3.400(r), the effective date based on new and material evidence (other than service department records which is not at issue in the instant case) received after the final disallowance of a claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. As such, a finding as to when entitlement to service connection for bilateral hearing gloss arose in this case is unnecessary insofar as, per the applicable regulation, an effective date earlier than April 15, 2013, would not be warranted. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Id. at 57,686. Under the former regulations, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2014). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Board has carefully reviewed the record to determine whether there is any other communication or record between the notice of the March 2010 Board decision and the April 15, 2013 claim to reopen which may be interpreted as a claim for benefits under the former regulations. See Servello v. Derwinski, 3 Vet. App. 196 (1992) (the Board must look at any communication that can be interpreted as a claim, formal or informal, for VA benefits). An informal claim was not shown to exist during this time period because no communication was ever filed between those dates indicating an intent to re-apply for service connection for a bilateral hearing loss disability. The Board recognizes that several copies of previously-filed records pertaining to the Veteran's gunshot wound claim were filed between March 2010 and April 2013; however, the documents do not include statements articulating intent to reopen the hearing loss claim that the Board previously denied in 2010. An informal claim must identify the benefit sought. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (noting that VA "is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed," and citing Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995), for the proposition that VA is not required to do a "prognostication" or "conjure up" issues that were not raised by the appellant, but to review issues reasonably raised by the substantive appeal). The Board adds that these cases make it evident that medical records generally cannot be construed as constituting an informal claim for service connection. They may be an informal claim for an increased disability rating or to reopen a compensation claim originally denied by reason of not being compensable in degree, but that is not the situation here. See 38 C.F.R. § 3.157 (2014). In short, the evidence demonstrates that between notice of the March 2010 Board decision and April 15, 2013, the Veteran did not submit any claim, either formal or informal, to reopen his service-connection claim for a bilateral hearing loss disability. The Veteran does not contend that he filed an express request to reopen during this period, and the Board has not identified any communication which could be reasonably interpreted as such. In sum, entitlement to an effective date earlier than April 15, 2013, for the grant of service connection for bilateral hearing loss must be denied. ORDER Entitlement to the assignment of an effective date earlier than April 15, 2013 for the grant of service connection for a bilateral hearing loss disability is denied. REMAND At the hearing before the undersigned, it was asserted that the Veteran's hearing loss is now so severe that he is now essentially deaf, and that he would be willing to attend another VA examination to assess the severity of his hearing loss (he was last afforded such an examination in April 2014). Given these sworn assertions of worsening hearing loss since his last examination, the AOJ should afford the Veteran a VA audiometric examination to determine the current severity of his service-connected bilateral hearing loss. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.326 (2017); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). As the resolution of the matter of the proper compensation for bilateral hearing loss-and the findings from the VA examination requested below-could potentially impact the adjudication of the claims for TDIU and SMC, the adjudication of these claims by the Board must be deferred at this time. Harris v Derwinski, 1 Vet. App. 80 (1991). (CONTINUED ON NEXT PAGE) 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. Schedule the Veteran for a VA examination to determine the current severity of his bilateral hearing loss disability. The paper and electronic claims files must be made available for review of the Veteran's pertinent medical history. The examiner should conduct audiometric testing and report the resulting auditory thresholds, in decibels, for the frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to obtain speech discrimination scores. If speech discrimination scores are not appropriate, the examiner must certify as much with an explanation as to why this is the case. The examiner is specifically requested to describe the functional effects caused by the Veteran's bilateral hearing loss, to include any occupational limitations. The examiner should also indicate whether the Veteran's hearing loss disability renders him unable to perform the normal activities of daily living without assistance or unable to protect himself from the hazards and dangers incident to his daily environment. All opinions provided should be supported by a clear rationale. 2. After completion of the above and any other warranted development, the AOJ should re-adjudicate the claims that have been remanded. If a benefit sought on appeal remains denied, the AOJ shall issue an appropriate supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The remanded 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. §§ 5109B, 7112 (West 2012). ______________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs