Citation Nr: 18160215 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 13-21 959 DATE: December 26, 2018 ORDER Entitlement to a compensable rating for right ear hearing loss is denied. Entitlement to an effective date prior to November 09, 2002 for the award of service connection for tinnitus, to include whether a prior rating decision was clearly and unmistakably erroneous (CUE) is denied. An effective date of December 03, 2007 for the award of service connection for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. An effective date of August 03, 2006 for the award of 10 percent disability rating for right knee disability is granted, subject to the laws and regulations governing the payment of monetary benefits. The claim for service connection for blood clot on lung is reopened; the appeal is granted to this extent only. The claim for service connection for injury to left leg is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for lung disability is remanded. Entitlement to service connection for left leg disability is remanded. Entitlement to service connection for prostate cancer, to include as secondary to service-connected PTSD and lung disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACTS 1. The Veteran’s right ear hearing loss was, at worst, manifested by level IV hearing loss during the appeal period. 2. A claim for service connection for tinnitus was not received before November 9, 2002. 3. December 3, 2007 is the earliest date the Veteran was diagnosed with PTSD. 4. A claim for increase rating for right knee disability was received on August 3, 2006. 5. The June 1978 rating decision that denied service connection for blood clot on lung and injury to left leg is final. 6. Since 1978, new and material evidence has been received to reopen the claim for service connection for blood clot on lung and injury to left leg. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right ear hearing loss are not met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to an effective date earlier than November 9, 2002 for service-connected tinnitus are not met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to an effective date of December 3, 2007 for service-connected PTSD are met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. § 3.400. 4. The criteria for entitlement to an effective date of August 3, 2006 for the award of 10 percent disability rating for right knee disability are met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. § 3.400. 5. New and material evidence have been received, and the claim for service connection for blood clot on lung may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 6. New and material evidence have been received, and the claim for service connection for injury to left leg may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active military duty from August 1973 to October 1977. Unfortunately, the Veteran died in July 2014 while this appeal was pending. The Appellant is his surviving spouse and she has been substituted for the purposes of adjudicating all pending claims. Increase Rating The Appellant is seeking increase rating for the Veteran’s service-connected right ear hearing loss. The VA’s Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss are determined by considering the puretone threshold average and speech discrimination percentage scores. 38 C.F.R. § 4.85 (b), Table VI. The Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The Veteran was only service-connected for hearing loss in his right ear. When impaired hearing is service connected in only one ear, then the nonservice-connected ear will be assigned a numeric designation of I, unless the service-connected hearing loss is at least 10 percent disabling, there is hearing impairment in the nonservice-connected ear under 38 C.F.R. § 3.385, and the nonservice connected disability is not the result of the Veteran’s own willful misconduct. 38 U.S.C. § 1160 (a)(3); 38 C.F.R. §§ 3.383 (a)(3), 4.85(f). In this case, the Board has considered whether the Veteran’s left ear should be considered service connected for rating purposes. However, as explained below, the Veteran’s service-connected right ear is not compensable on its own; therefore, the Veteran is not entitled to have his nonservice-connected left ear considered service connected for the purposes of an increased rating. See 38 U.S.C. § 1160 (a)(3), 38 C.F.R. §§ 3.383 (a)(3) and 4.85(f). The audiological examinations of record reflect a level of impairment that is not compensable. To that end, the Veteran underwent an audio exam in February 2011. The Veteran’s audiometry results were as follow: HERTZ 1000 2000 3000 4000 RIGHT 25 40 90 95 Based on this result, the average puretone threshold is 62.5. Speech recognition testing using the Maryland CNC test revealed speech recognition score of 80 percent and 84 percent. In the interest of affording the Veteran the benefit of the doubt, the Board will accept the 80 percent speech recognition for rating purposes. These results reflect that the Veteran had IV level of hearing loss in the right ear, when combined with level I hearing loss for the left ear, it does not yield a compensable disability rating. On the other hand, a January 2009 VA examination found the following: HERTZ 1000 2000 3000 4000 RIGHT 20 30 85 85 The average puretone threshold during this exam was 55 dB. Speech recognition testing using the Maryland CNC test revealed speech recognition score of 92 percent. This result shows a level I hearing loss. When combined with level I hearing loss for the left ear, these results are consistent with a 0 percent evaluation. The Board finds the two examinations of record are adequate. The Appellant has not identified any other outstanding medical records that reflect the severity of the Veteran’s hearing loss before his death. The Board has considered all relevant evidence of record. This review does not reveal evidence that supports higher rating than assigned. See Savage v. Shinseki, 24 Vet. App. 259 (2011). Further, there is no evidence of an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. In summary, the record does not have medical evidence to support a higher rating than assigned for the Veteran’s right ear hearing loss. Therefore, the Board concludes that the preponderance of the evidence is against assigning a compensable disability rating. Effective Date The Appellant disagrees with the effective date assigned to the Veteran’s service-connected tinnitus and PTSD, as well as the 10 percent rating assigned for his right knee disability. Section 5110(a), Title 38, United States Code, provides that “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase rating...shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection “will be the date of receipt of the claim or the date entitlement arose, whichever is later.” A. Tinnitus The Appellant contends that an effective date earlier than November 9, 2002 is warranted for the Veteran’s service-connected tinnitus. The Regional Office (RO) granted service connection by way of a September 2009 rating decision with an effective date of December 2008. In September 2011, the RO found that the effective date assigned was erroneous and granted an earlier effective date of November 9, 2002. However, the Appellant’s representative raises CUE claim and avers that an effective date of 1978 is warranted. See January 2011 Statement. The Board notes that the CUE claim makes a general statement rather than identify an error in a specific rating decision. Notwithstanding, as the September 2009 decision is final, it is not subject to revision in the absence CUE in the decisions. 38 U.S.C. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). Therefore, the Board has reviewed the September 2009 rating decision for CUE. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be “undebatable” and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). CUE is a very specific and rare kind of “error.” It is the kind of error in 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 manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14. Any claim of CUE must be pled with specificity. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). Broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or can any other general, non-specific claim of “error” meet the restrictive definition of CUE. Fugo, 6 Vet. App. at 44. The Board notes that a claim of CUE is a collateral attack on an otherwise final rating decision. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). In this case, the Appellant’s representative raised a claim for CUE is based on the assertion that the RO failed to “sympathetically review a claimant’s filing to determine and adjudicate all claims reasonably raised by the record.” The Board notes that this contention does not meet the specificity required for a claim based on CUE. Notwithstanding, a sympathetically review of the record shows that the Veteran never filed a service connection claim for tinnitus. Service connection was awarded based on a November 9, 2002 examination that found that his tinnitus is more likely than not etiologically related to his military service. Thus, that is the earliest date the evidence shows all three elements of a service connection claim for tinnitus. The Board recognizes an August 1978 VA examination report that show that the Veteran had mild tinnitus. However, a medical record showing diagnosis of tinnitus without a formal or informal claim filed with the VA is not grounds to grant an earlier effective date. See Ellington v. Nicholson, 22 Vet. App. 141 (2007) (finding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection for a psychiatric disorder). In summary, the record does not document communication that can reasonably be interpreted as formal or informal claim for service connection for tinnitus prior to the current effective date. Filing for service connection for another disability, to include the distinct disability of hearing loss without reference to ringing in the areas or otherwise references the disability of tinnitus, did not constitute the filing of a claim for service connection for tinnitus. Because the Veteran’s tinnitus is etiologically related to occupational noise exposure in service, but an actual diagnosis of the condition in service, this case is distinguishable from See Sellers v. Wilkie, No. 16-2993, 2018 U.S. App. Vet. Claims LEXIS 1114 (Vet. App. Aug. 23, 2018) (holding that an informal claim for benefits may be raised where a claimant makes a general statement of intent to seek benefits for unspecified disabilities and there is evidence of reasonably identifiable in-service diagnoses in service treatment records in the possession of the RO). Therefore, the Board finds that the evidence does not support effective date earlier than assigned. The Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. B. PTSD In January 2010, the RO granted service connection for PTSD with an effective date of December 1, 2008. The Veteran disagreed with the effective date assigned in December 2010. While adjudication of the issue was pending, the Veteran’s representative filed a statement in January 2011 claiming CUE on the grounds that the RO did not afford a sympathetic review of the Veteran’s filings to adjudicate claims reasonably raised by the record. The representative contends that an effective date of August 15, 1978 is warranted. It is unclear whether the representative is claiming CUE in the January 2010 rating decision or June 1978 rating decision. As noted above, a review of claim based CUE is reserved for rating decisions that have become final. In this case, the January 2010 rating decision was not final as a notice of disagreement was filed in less than a year. As to the June 1978 rating decision, it did not address a claim for PTSD. Nor was there a formal or informal claim raised for PTSD in the record at that time. In February 1978, the Veteran filed a service-connection claim for head injury. He, however, did not raise the issue of PTSD or describe symptoms that can be attributed to PTSD. The Board finds based on this procedural history and facts that a remand for the RO to further consider CUE is unnecessary. The evidence does, however, shows that an effective date of December 03, 2007 is warranted. Although August 03, 2006 is the earlies date a claim for service-connection for PTSD was filed, the Veteran did not have a current disability at that time. That is, VA treatment records from December 2006 reflect that the Veteran’s screening for PTSD was negative. In fact, December 03, 2007 is the earliest date the evidence in the record shows diagnosis of PTSD. As noted above, an effective date is determined by the date a claim for service connection was filed or the date entitlement arose, whichever is later. Here, while the claim was filed in August 2006, his entitlement did not arise until December 03, 2007—the earliest date PTSD was diagnosed. Therefore, December 03, 2007 is the appropriate effective date for the Veteran’s service-connected PTSD. The Board finds no basis for an earlier claim. C. Right Knee Disability The Appellant contends that an effective date earlier than December 1, 2008 is warranted for 10 percent disability rating assigned to the Veteran’s right knee disability. Review of the record shows that the Veteran filed a claim for right knee disorder on August 03, 2006. The RO granted increase rating for right knee disability by way of a January 2010 rating decision with an effective date of December 1, 2008. The Veteran’s representative filed notice of disagreement with the effective date assigned in December 2010. After reviewing the evidence in light most favorable to the Veteran, the Board finds that August 03, 2006—the date the claim for increase rating was filed—is the appropriate effective date for the 10 percent disability rating in this case. The Board recognizes that in January 2011 the Veteran’s representative filed a statement indicating a claim for an earlier effective date of August 15, 1978 based on CUE. Notably, the statement does not specifically indicate CUE with respect to the effective date for 10 percent for right knee disability. But, even the Veteran’s representative intended for it to be applicable to the rating for the right knee, the Board finds that CUE is not grounds to assign an early effective date than August 03, 2006. That is, there was no final rating decision that assigned an effective date for 10 percent disability rating for right knee disability can be subjected to CUE review. A sympathetic reading of the Appellant’s representative and testimony of the Appellant do not reflect that the Veteran raised a claim of CUE regarding the June 1978 rating decision that assigned a noncompensable disability rating for right knee disability. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005). Therefore, the Board finds that an effective date of August 03, 2006, but not earlier, is warranted for the 10 percent disability rating assigned to right knee disability. New and Material The RO’s determination not appealed within one year becomes a final decision, which may only be reopened with a showing of new and material evidence. 38 U.S.C. §§ 5108; 7105. “New” evidence means evidence not previously submitted to the RO. On the other hand, “material” evidence means 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 already of record at the time of the last 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). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In this case, a June 1978 rating decision denied service connection for blood clot on the lung and injury to left leg disability, which became final because it was not appealed within one year. At that time, the RO found that the evidence did not establish current disability. Since the June 1978 rating decision, the Appellant was provided a hearing in June 2018. During the hearing, she testified that the Veteran had coughing because of his lung disability. See hearing transcript at 5. As to the left leg disability, the Appellant testified that the Veteran had noticeable limp because of his left leg disability. Id. at 6. Her testimony is new evidence that was not previously considered by the RO. To the extent her testimony goes towards establishing a current disability, it is material evidence. In light of the low threshold for reopening a claim noted above, the Board finds that the Appellant’s testimony is new and material evidence that warrants reopening the claim. REASONS FOR REMAND The Board regrets further delay, but additional development is necessary before adjudicating the remaining claims. A. Left Leg Disability, Lung Disability and Prostate Cancer The Board cannot make a fully-informed decision on the issue of entitlement to left leg disability, lung disability and prostate cancer because no VA examiner has opined whether these conditions are related to the Veteran’s military service or service-connected disabilities. Accordingly, a remand is necessary. B. TDIU Finally, because a decision on the remanded issues of service connection for lung disability, left leg disability, and prostate cancer could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Forward the claims file, including a copy of this remand, to a VA examiner for an opinion regarding the claimed left leg disability. The examiner must review the claims file and then address the following question: Was the Veteran’s left leg disability at least as likely as not (a 50 percent or greater probability) etiologically related to his active military service? Although the examiner should review the claims file in its entirety, his/her attention is drawn to a December 2009 Physical Residual Functional Capacity Assessment in the Veteran’s social security administration records that reflect a diagnosis of moderate to severe resting arterial insufficiency of the left leg. A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case. 2. Forward the claims file, including a copy of this remand, to a VA examiner for an opinion regarding the service connection claim for lung disability. The examiner must review the claims file and then address the following questions: Did the Veteran have lung disability? If so, was the Veteran’s lung disability at least as likely as not (a 50 percent or greater probability) etiologically related to the Veteran’s active military service? In the alternative, was the Veteran’s lung disability at least as likely as not (50 percent or greater probability) caused by the Veteran’s service-connected PTSD; and Was it at least as likely as not (50 percent or greater probability) that the Veteran’s lung disability was aggravated by his service-connected PTSD. The examiner should note and comment on the Appellant’s contention that the Veteran’s self-medicated his PTSD by smoking. The examiner should note and comment on the Appellant’s statement that the Veteran had consistent cough with mucus. Although the examiner should review the claims file in its entirety, his/her attention is drawn to September 2009 VA treatment record that shows that the Veteran had occasional dyspnea and scar tissue on the right lung from blood clot. A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case. 3. Forward the claims file, including a copy of this remand, to a VA examiner for an opinion regarding the service connection claim for prostate cancer. The examiner must review the claims file and then address the following questions: Was the Veteran’s prostate cancer at least as likely as not (50 percent or greater probability) related to service? In the alternative, was the Veteran’s prostate cancer at least as likely as not (50 percent or greater probability) caused by the Veteran’s service-connected PTSD; and Was it at least as likely as not (50 percent or greater probability) that the Veteran’s prostate cancer was aggravated by his service-connected PTSD. The examiner should note and comment on the Appellant’s contention that the Veteran’s self-medicated his PTSD by smoking, which caused his prostate cancer.   A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.SOLOMON