Citation Nr: 1805695 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-14 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an effective date earlier than February 11, 1999, for the grant of service connection for bilateral hearing loss, to include on the basis of clear and mistakable error (CUE) in an August 1974 rating decision denying entitlement to service connection for bilateral hearing loss. 2. Entitlement to an effective date earlier than February 11, 1999, for the grant of entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1970 to January 1974, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2007 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. In an August 1974 rating decision, the RO denied the Veteran's claim for entitlement to service connection for bilateral hearing loss. The Veteran did not appeal the decision and new and material evidence was not received within one year of its issuance. 2. In March 1983, the Veteran requested that his hearing loss claim be reopened. In an April 1983 VA notification letter, the RO declined to reopen the Veteran's claim. The Veteran filed a notice of disagreement in July 1983. Following a July 1983 statement of the case, the Veteran failed to file a timely substantive appeal (VA Form 9), and new and material evidence was not received within the remainder of the appeal period. 3. In February 1999, the Veteran requested that his hearing loss claim be reopened. In a November 2001 rating decision, the RO granted service connection for bilateral hearing loss and assigned an effective date of January 3, 2000. The Veteran did not perfect an appeal as to the assigned effective date. 4. A November 2008 rating decision found CUE existed in the November 2001 rating decision with respect to the assigned effective date for the Veteran's bilateral hearing loss. The RO assigned an effective date of February 11, 1999. 5. The August 1974 rating decision was supported by the evidence then of record and was consistent with VA law and regulations then in effect, and any errors contained in the August 1974 rating decision are neither undebatable nor are of the sort of that would have manifestly changed the outcome of that decision. 6. Prior to February 11, 1999, the Veteran's service-connected right shoulder disability, alone, did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The August 1974, March 1983 and November 2001 RO decisions are final, and the November 2001 rating decision is final as to the matter of the assignment of an effective date for service connection for bilateral hearing loss. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 2. The August 1974 rating decision, which denied service connection for bilateral hearing loss, was not clearly and unmistakably erroneous. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.105 (2017). 3. The criteria for an effective date earlier than February 11, 1999, for the grant of a TDIU are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date and CUE A. Factual Background The Veteran filed his initial claim for entitlement to service connection for bilateral hearing loss in June 1974. He was provided a VA examination in July 1974 in which he reported that his preexisting hearing loss worsened due to his military occupation specialty (MOS) of Seabass construction. His DD Form 214 indicates that his MOS was an electrician and that he served in a construction battalion. His claim was denied in an August 1974 rating decision which determined that there was no aggravation of the pre-existing hearing loss. The Veteran did not submit a Notice of Disagreement (NOD) with the August 1974 rating decision, nor did he submit any additional evidence concerning his claim within one year of that rating decision. To the extent the Veteran asserts his representative told him he could not appeal the 1974 decision, the Board emphasizes that "erroneous advice given by a government employee cannot be used to [prevent] the government from denying benefits." McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (referring to the rule enunciated in OPM v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L. Ed. 2d 387 (1990)). Thus, the decision became final. See 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. In March 1983, the Veteran requested that his hearing loss claim be reopened. In an April 1983 VA notification letter, the RO declined to reopen the Veteran's claim without new and material evidence. The Veteran filed a NOD in July 1983. Following, a July 1983 statement of the case, the Veteran failed to file a timely substantive appeal (VA Form 9), and new and material evidence was not received within the remainder of the appeal period. Thus, the appeal became final. Id. In February 1999, the Veteran requested that his hearing loss claim be reopened. In support of his claim, he submitted a letter from Dr. J.B. in January 2000, which provided a positive medical opinion linking the Veteran's increased hearing loss to service. In a November 2001 rating decision, the RO reopened the claim and granted service connection for bilateral hearing loss and assigned an effective date of January 3, 2000. The Veteran did not file a timely NOD as to the assigned effective date. In a November 2008 rating decision, the RO found CUE existed in the November 2001 rating decision with respect to the assigned effective date for the Veteran's bilateral hearing loss. The RO assigned an effective date of February 11, 1999. In a February 2009 written statement, the Veteran asserted his disagreement with the assigned effective date. B. Analysis The Veteran seeks entitlement to an effective date earlier than the currently assigned February 11, 1999 for service connection for bilateral hearing loss, to include based upon an allegation of CUE in an August 1974 VA rating decision. In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court of Appeals for Veterans Claims held that where a rating decision which established an effective date becomes final, an earlier effective date can only be established by a request for a revision of that decision based on CUE. In essence, the Court in Rudd held that there is no "freestanding" earlier effective date claim which could be raised at any time. See Rudd, 20 Vet. App. at 299. Because the Veteran did not perfect an appeal the November 2001 rating decision as to the assignment of an effective date, the RO's decision as to the effective date of service connection for bilateral hearing loss became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017). The Veteran's current claim voicing disagreement as to the effective date of service connection for bilateral hearing loss, to include arguments as to applicability of 38 C.F.R. § 3.159(c), was filed years after the November 2001 rating decision that established service connection for bilateral hearing loss and assigned the effective date. His disagreement with the effective date is therefore untimely. See Rudd, supra; see also 38 U.S.C. § 7105; 38 C.F.R. § 20.302. The Board acknowledges that the Veteran asserted his disagreement in February 2009 with the assigned effective date following the November 2008 rating decision that assigned an effective date of February 11, 1999 based on CUE. Per 38 CFR 3.105(a), when there is a finding of CUE, "the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision." In other words, as a result of the CUE finding, it is as if the assignment of the February 11, 1999 effective date had been made in November 2001. Therefore, as the Veteran did not appeal the November 2001 rating decision, his February 2009 disagreement with the effective date is not timely. See Rudd, supra. Thus, the Veteran is left with only one option in his attempt to obtain an earlier effective date: a claim alleging CUE in a prior rating decision. See Rudd; see also 38 C.F.R. § 3.105 (2017). Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the adjudicator, (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory and regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310 (1992). A determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question and the error must not only be undebatable but must have manifestly changed the outcome at the time it was made. Russell, 3 Vet. App. At 313-14; see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (in order to prove the existence of clear and unmistakable error, a claimant must show that an error occurred that was outcome-determinative, that is, an error that would manifestly have changed the outcome of the prior decision). As a threshold matter, the Board finds that the argument advanced by the Veteran alleges clear and unmistakable error with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393, (2006). However, for the reasons explained below, the Board finds that the August 1974 rating decision does not contain any clear and unmistakable error that would have manifestly changed the outcome of the decision. The Veteran asserts that the August 1974 rating decision denying service connection for bilateral hearing loss was clearly and unmistakably erroneous, in that it did not consider his in-service noise exposures without the benefit of hearing protection, which aggravated his pre-existing hearing loss. See August 2017 Hearing Tr. at 4. In considering the CUE claim, the Board must consider the law in effect at the time of the August 1974 decision. Applicable law in effect at the time of the rating decision provided that service connection would be granted for a disability resulting from personal injuries suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. §§ 310, 331 (as effective prior to August 6, 1991) [now codified at 38 U.S.C. §§ 1110, 1131]; 38 C.F.R. §§ 3.303, 3.304 (1974). For the purpose of section 310 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 311 (1974) [now codified at 38 U.S.C. § 1111]. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 353 (1974) [now codified at 38 U.S.C. § 1153]; 38 C.F.R. § 3.306 (1974). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id. In the August 1974 rating decision, the RO denied service connection for bilateral hearing loss reasoning that "[t]he evidence does show a slight increase in hearing loss during the [V]eteran's active service, however, in the absence of trauma or disease in service, this slight increase is attributed to the natural progress of the condition and aggravation of the preexisting hearing loss is not established." Relevant evidence in the Veteran's claims file at the time of the August 1974 rating decision included his service treatment records and the July 1974 VA examination report. During the July 1974 VA examination, the Veteran reported tinnitus and exposure to loud noise and heavy equipment during service. There was no competent medical opinion of record at the time of the August 1974 decision that stated that the Veteran's separation audiogram showed aggravation beyond the natural progress of the disease. See 38 C.F.R. § 3.306. To the extent the July 1974 VA examiner did not render a nexus opinion, failure to obtain a medical opinion or any other duty to assist inadequacies cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). Moreover, the Board emphasizes that at the time of the August 1974 rating decision, the RO was not precluded from relying upon its own medical judgment to support its conclusions. Cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board cannot substitute its own medical judgment for that of medical professionals). A medical member of the RO rating panel participated in the August 1974 decision and was a signatory to the determination. His signature signified his agreement with the finding that the Veteran's pre-existing hearing loss was not aggravated beyond the natural progress of the disease in service, and that any noise exposures during active duty did not rise to the level of acoustic trauma. See MacKlem v. Shinseki, 24 Vet. App. 63, 70 (2010) (acknowledging RO rating boards included physicians in pre-Colvin era decisions and permissibly relied on the medical judgment offered by the medical member of the rating board who participated in the determination); see also Bowyer v. Brown, 7 Vet. App. 549, 552-53 (1995) (holding that the Board's position was substantially justified in a pre-Colvin decision in relying on its own medical judgment). Thus, the Veteran's current CUE argument represents a disagreement as to how the facts and evidence was weighed, and cannot support a finding CUE. See Russell, 3 Vet. App. at 313-14; Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991) (holding that allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error). In view of the foregoing, the Board finds that the Veteran has failed to establish that the RO committed CUE in the August 1974 rating decision. There is simply no indication that the RO did not properly consider all evidence before it or that it failed to correctly apply the appropriate laws and regulations, as they existed at that time, to the Veteran's claim. Therefore, the Veteran has not demonstrated clear and unmistakable error, and his motion for revision must be denied. C. Equitable Tolling The Veteran asserts that his now service-connected depression impacted his ability to file a NOD following the August 1974 rating decision, as it impacts his ability to concentrate and process things in a timely manner. See March 2015 Appellant's Brief; August 2017 Board Tr. at 2. To benefit from equitable tolling, a claimant must demonstrate (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Aldridge v. McDonald, 27 Vet. App. 392, 393 (2015) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005) (applying equitable tolling with regard to the filing of a Notice of Appeal). One such "extraordinary circumstance" that may prevent a veteran from making a timely submission is illness or incapacity that renders a claimant incapable of rational thought or deliberate decision making, or of handling his or her own affairs or of functioning in society. See Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004); see also Bove v. Shinseki, 25 Vet. App. 136, 144 (2011). This standard requires more than a decrease in mental capacity or functioning, but rather an inability to think rationally or deliberately, handle affairs or function in society. See Barrett, 363 F.3d at 1321; see also Bove, 25 Vet. App. at 144. A medical diagnosis alone or vague assertions of mental problems will not suffice to meet this standard. Barrett, 363 F.3d at 1321; Bove, 25 Vet. App. at 144 (bald assertions that mental illness prevented the claimant from filing his appeal, without any supporting evidence to demonstrate that he was incapable of functioning or making decisions due to mental illness, were insufficient to warrant equitable tolling). The Board observes that 38 C.F.R. § 3.353(a) defines a mentally incompetent person as "one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation." The claims file is devoid of any competent evidence that the Veteran was rendered incompetent due to any disability following the issuance of the rating decision in August 1974. Notably, in a June 1975 written statement (prior to the expiration of the one-year period to file a NOD), the Veteran inquired about receiving a June 15, 1975 check. Further, he indicated that he was training for a job for the city government. The Board acknowledges that the Veteran was admitted to the hospital for major depression in June 1994 and November 2003, however this was decades after the August 1974 decision. In his 1992 Social Security Administration (SSA) disability report, he reported that he worked for the city government beginning in 1975 and was employed until 1992. Thus, the evidence of record during the applicable time period fails to reflect that the Veteran was so psychologically impaired so as to be incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society, as he was training for a job and inquiring about his due compensation. The Veteran is not competent to assess whether his mental disorder rendered him unable to think rationally or deliberately, handle affairs or function in society during this period. Consequently, equitable tolling is not warranted. TDIU prior to February 11, 1999 The Veteran asserts that an effective date prior to February 11, 1999, is warranted for the grant of a TDIU. Specifically, he asserts that the TDIU should be effective March 13, 1992 as he was in receipt of Social Security Disability benefits and he has not been able to work since that time. See August 2017 Hearing Tr. at 2. With respect to an earlier effective date, a TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Even when the percentage requirements under 38 C.F.R. § 4.16(a) are not satisfied, a total disability evaluation may still be assigned on an extraschedular basis. Indeed, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, exceptional cases may be submitted to the Director of Compensation and Pension Service for extraschedular consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). Service connection is currently in effect for bilateral hearing loss, tinnitus, depression secondary to hearing loss, and residuals of a right shoulder injury. Historically, the combined ratings have been noncompensable from August 22, 1995; 80 percent from February 11, 1999; and 90 percent from July 29, 2002. Entitlement to a TDIU was awarded in February 11, 1999. Prior to February 11, 1999, service connection was only in effect for residuals of a right shoulder injury, rated as noncompensable. Thus, the Veteran did not meet the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) prior to February 11, 1999, and a TDIU would only be available an extraschedular basis in relation to the right shoulder. Here, the Veteran asserts that he is entitled to a TDIU prior to February 11, 1999 based on his service-connected disabilities. The evidence shows that he has four years of high school education, worked as a line man for the city government from 1975 to 1978, and that he last worked as a machinist running a metal lathe from July 1978 to March 1992. See October 1992 SSA Disability Report; November 2006 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In his October 1992 SSA Disability Report, he reported that his job duties aggravated his shoulder injury. The Veteran filed a formal claim for a TDIU rating in November 2006. Even assuming a claim for a TDIU was raised by the record prior to this date, the Board finds that the "date entitlement arose" for TDIU purposes is February 11, 1999, thereby precluding an earlier effective date, as the competent evidence of record does not demonstrate the noncompensable right shoulder disability, alone, rendered the Veteran unable to secure or follow a substantially gainful occupation prior to February 11, 1999. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). In this regard, in February 1996, the Veteran himself indicated that he was unable to work due to his tinnitus, hearing loss, depression, shoulder, and spinal injuries. See February 1996 NOD. As noted above, only his right shoulder was service-connected at that time. The Board emphasizes that consideration may not be given to the impairment caused by nonservice-connected disabilities when determining whether an individual veteran is entitled to a TDIU. See 38 C.F.R. § 3.341, 4.16, 4.19. Thus, the Veteran's own assertions weigh against a finding of TDIU due solely to the right shoulder disability prior to February 11, 1999. Additionally, Social Security Administration (SSA) records include a finding of disability due to tinnitus and moderate alcohol dependence since March 1992. Among the records considered by SSA was a March 1994 physical therapy evaluation revealing full range of right shoulder motion without pain. While not bound by this decision, the Board finds it persuasive. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (although a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a Veteran's claim). A private June 1994 orthopedic record indicates that the Veteran complained of instability and pain whenever he raised his shoulder in forward flexion and abduction. Physical examination revealed crepitation, slight pain with apprehension maneuver, and positive relocation signs without additional signs of instability. In July 1994, the physician noted impinged motion of the right shoulder and some paresthesias on the inner aspect of his upper arm. The Veteran was afforded a shoulder VA examination in October 1995. Physical examination revealed full range of motion in the right shoulder with pain beginning at 90 degrees. X-ray of the right shoulder was negative. In a September 1996 DRO hearing, the Veteran testified that he previously worked through his right shoulder pain with assistance from over the counter pain relievers. Notably, in January 1995, the Veteran's psychiatrist, Dr. G.P., indicated that the Veteran was "totally and permanently occupationally disabled due to his depression and tinnitus." While the psychiatrist noted the Veteran's "long standing shoulder injury," he explicitly indicated that only the nonservice-connected tinnitus and depression impacted his ability to work. While not disputing that the Veteran's right shoulder disability caused him significant pain during this period, the preponderance of the above-cited evidence does not indicate that the Veteran's right shoulder disability, alone, rendered him unable to secure or follow a substantially gainful occupation prior to February 11, 1999. Thus, the Board finds an effective date earlier than February 11, 1999, is not warranted for the grant of a TDIU. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400 (b)(2). As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an effective date earlier than February 11, 1999, for entitlement to service connection for bilateral hearing loss, to include on the basis of CUE in an August 1974 rating decision, is denied. Entitlement to an effective date earlier than February 11, 1999, for the award of a TDIU is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs