Citation Nr: 18152015 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 17-34 389 DATE: November 20, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. Entitlement to an effective date earlier than August 26, 2011 for the grant of service connection for hemorrhoids is dismissed. Entitlement to an effective date earlier than May 9, 2016 for the grant of a 20 percent rating for hemorrhoids is denied. FINDINGS OF FACT 1. Bilateral hearing loss disability was not shown in service or to a compensable degree within one year of the Veteran’s discharge from service, and the most probative evidence indicates the Veteran’s current hearing loss is not related to his military service, to included conceded in-service exposure to acoustic trauma. 2. Resolving all doubt in the Veteran’s favor, the Board finds the Veteran’s tinnitus arose in service and has continued since. 3. In a July 2012 notice letter, the Veteran was informed that service connection for hemorrhoids had been established effective August 26, 2011; he filed a timely notice of disagreement (NOD) with the rating assigned, but not the effective date assigned. 4. The Veteran submitted an intent to file that was received on May 9, 2016; his formal claim for increased rating was received on June 28, 2016. 5. During the one-year period prior to May 9, 2016, the Veteran’s hemorrhoid disability was not manifested by symptomatology that more nearly approximates a disability rating of 20 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 3. The appellant's freestanding claim for an effective date earlier than August 26, 2011, for the grant of service connection for hemorrhoids, is not authorized by law. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. § 20.1100 (2018); 38 C.F.R. §§ 3.400, 20.1103 (2018); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 4. The criteria for an effective date earlier than May 9, 2016, for the grant of a 20 percent rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.400 (2014), 4.114, Diagnostic Code 7336 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from March 1980 to March 1983. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that the Veteran has filed a notice of disagreement (NOD) related to the denial of service connection for disorders of the right knee, breasts and pseudofolliculitis barbae. These appeals are listed in the VACOLS appeals tracking system as active appeals at the RO. While the Board is cognizant of the Court’s decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NODs and is in the process of adjudicating the appeals. As such, no action will be taken by the Board now and the issues presently before the RO pertaining to these claims for service connection will be the subject of a later Board decision, if ultimately necessary. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include sensorineural hearing loss and tinnitus as organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (Court) has held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease [] of the nervous system.’” Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Court also indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Id. at 272. 1. Service connection for bilateral hearing loss For the purposes of applying the law administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran seeks entitlement to service connection for bilateral hearing loss. He has current bilateral hearing loss as defined by VA regulations and exposure to acoustic trauma during service has been conceded by the RO. As such, the question that remains is whether the Veteran’s bilateral hearing loss disability is related to his in-service exposure to acoustic trauma. The first indication that the Veteran met the criteria for bilateral hearing loss disability pursuant at 38 C.F.R. § 3.385 was in May 2017, during audiological testing conducted during a VA examination. At that time, the criteria were met based on a 40 decibel puretone threshold noted at 3000 Hertz and 4000 Hertz, bilaterally. The examiner diagnosed sensorineural hearing loss. As there is no competent evidence that the Veteran met the criteria for a bilateral hearing loss disability per VA regulation in service or within one year following his discharge from service, competent evidence linking the current condition with service is required to establish service connection. No such evidence exists in this case. The May 2017 VA examiner provided an opinion that it is less likely than not that the Veteran’s bilateral hearing loss is due to his in-service noise exposure. This opinion was based on evidence of bilateral normal hearing, despite a threshold shift, when the Veteran was evaluated during service in January 1980 and March 1983; and the fact that research did not support the concept of delayed onset hearing loss after thresholds are recorded as normal after noise exposure. See addendum opinions obtained in May 2017 and June 2017. The VA examiner’s opinion, which stands uncontroverted in the record and which was based on a detailed rationale, is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). While the Veteran believes that his hearing loss is related his in-service acoustic trauma, there is no indication that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the extent of hearing loss and the etiology of such is a matter not capable of lay observation, and requires medical testing and expertise to determine. Thus, the Veteran’s own opinion regarding the etiology of his hearing loss is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s assertion. In sum, the preponderance of the probative evidence is against a finding that the Veteran’s bilateral hearing loss arose in service or for many years thereafter, or is otherwise related to service. 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 claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Service connection for tinnitus The Veteran also seeks entitlement to service connection for tinnitus, which he reported during VA examination onset in service. In-service exposure to acoustic trauma has been conceded by the RO. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination “medical in nature,” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such testimony is sufficient to establish service connection. Id. The Board finds the Veteran’s assertions that tinnitus began in service to be credible. The Board acknowledges that the VA examiner provided an opinion against the claim. However, the Board finds the competent evidence to at least be in equipoise as to whether the Veteran’s tinnitus arose in service. Accordingly, the Board will resolve all doubt in the Veteran’s favor and find that service connection for tinnitus is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). Effective Dates 3. Entitlement to an effective date earlier than August 26, 2011 for the grant of service connection for hemorrhoids Service connection for hemorrhoids was established in a July 2012 rating decision, which assigned a noncompensable rating effective August 26, 2011. Notice of this decision was sent in a July 20, 2012 letter and the Veteran filed a timely NOD disagreeing with the evaluation assigned, but not the effective date. The Veteran did not perfect the appeal following issuance of a statement of the case. In his June 2016 claim, the Veteran indicated he was seeking an earlier effective date for the grant of service connection for hemorrhoids. In his notice of disagreement, he contends that he is entitled to an effective date (and retroactive pay) going back to his time in service. He initially asserted the effective date for service connection should be November 2, 1982, and has subsequently indicated it should go back to 1980 because has had hemorrhoids for 37 years. The case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on clear and unmistakable error (CUE). The Rudd Court also held that there can be no freestanding claim for an earlier effective date and that it was error to entertain such a claim. Rather, the proper course of action would have been to dismiss the appeal. As noted above, the Veteran did not voice disagreement with the RO’s assignment of an effective date of August 26, 2011, following his receipt of the July 2012 letter. In addition, review of the claims file does not reveal that the Veteran has filed a claim for CUE. Therefore, the only remaining possibility in this case is for the claim to proceed as some form of “freestanding claim for earlier effective dates.” See Rudd. This, however, vitiates the rule of finality. Given the foregoing, the Board finds that there is no proper claim in this case regarding the effective date assigned for the grant of service connection for hemorrhoids. The Veteran has not alleged CUE and, as such, his claim for an earlier effective date concerning the grant of service connection for hemorrhoids is considered to a freestanding claim, which is not a valid claim. The claim must be dismissed. Id. 4. Entitlement to an effective date earlier than May 9, 2016, for the grant of a 20 percent rating for hemorrhoids The Veteran asserts that he should be awarded an earlier effective date for the grant of a 20 percent rating for his hemorrhoid disability, to include an effective date as early as November 2, 1982, since he asserts he has been suffering from hemorrhoids for over 30 years and continues to suffer with the same problem. In general, unless specifically provided otherwise, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final adjudication, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Regarding claims for increase, VA laws and regulations provide that the effective date “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore,” unless specifically provided otherwise. 38 U.S.C. § 5110(a). Section 5110(b)(2) provides otherwise by stating that the effective date of an increased rating “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.” Under 38 C.F.R. § 3.400(o)(1), except as provided in paragraph (o)(2), the effective date is “date of receipt of claim or date entitlement arose, whichever is later.” Paragraph (o)(2) provides that the effective date is the “[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date otherwise, date of receipt of claim.” A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a) (2014). The term “claim” or “application” means 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) (2014). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2014). A report of examination or hospitalization that meets certain criteria will be accepted as an informal claim for an increase or to reopen provided the report relates to a disability that may establish entitlement. 38 C.F.R. § 3.157(a) (2014). The date of outpatient or hospital examination or date of admission to a VA or uniformed service hospital will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(1) (2014). Evidence received from a private physician or layperson will also be accepted as a claim when the evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(2) (2014). Regulations governing what constitutes a claim were revised effective March 24, 2015; however, as the Veteran’s claim was received prior to that date, the Board must apply the older regulations. As noted above, service connection for hemorrhoids was established in a July 2012 rating decision, which assigned a noncompensable rating pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7336, effective August 26, 2011. Notice of this decision was sent in a July 20, 2012, letter and the Veteran filed a timely NOD as to the rating assigned for the hemorrhoid disability. The rating was subsequently increased to 10 percent, also effective August 26, 2011, in a March 2014 rating decision, but the Veteran did not finalize his appeal after issuance of the statement of the case. The 10 percent rating was continued in a February 2015 rating decision. The Veteran filed an intent to file, which the RO received on May 9, 2016. His formal claim for increased rating was received on June 28, 2016. See VA Form 21-526EZ. The February 2017 rating decision that is the subject of this appeal increased the rating assigned for hemorrhoids to 20 percent effective May 9, 2016, the date on which the RO received the Veteran’s intent to file. As noted above, the effective date of an increased rating “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.” Thus, the question presented is whether the Veteran’s hemorrhoid disability manifested symptoms sufficient to warrant an increase in his disability evaluation to 20 percent in the one year prior to his May 9, 2016 date of claim. The Board finds, however, that the probative evidence of record does not support entitlement to an effective date earlier than May 9, 2016, for the award of an increased 20 percent rating for hemorrhoids. Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Under Diagnostic Code 7336, a 20 percent rating is assigned for internal or external hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. The Board has considered all the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Indeed, there is no medical evidence pertinent to hemorrhoids during the period from May 9, 2015, to May 9, 2016. While there are some VA treatment records dated during this timeframe, none relate to treatment for hemorrhoids. Thus, the Board concludes that there is no medical evidence relating to hemorrhoids during the relevant period prior to the current effective date of May 9, 2016, upon which to factually ascertain any increase in severity. Further, the January 2015 VA examination that is most proximate to the relevant timeframe does not show findings consistent with a higher 20 percent rating. Rather, the Veteran was only found to have mild or moderate hemorrhoids at that time with no notation made to any bleeding with anemia or fissures. In sum, the most probative evidence indicates that the Veteran’s hemorrhoid disability did not more nearly approximate the criteria for a 20 percent rating during the one period prior to May 9, 2016. 38 C.F.R. § 3.400(o). Thus, the Board concludes that an effective date earlier than May 9, 2016 for the assignment of a 20 percent rating for the hemorrhoid disability is not warranted. 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 claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel