Citation Nr: 1807894 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 15-19 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an increased evaluation for posttraumatic stress disorder, currently rated as 70 percent disabling. 2. Entitlement to a rating in excess of 20 percent for bilateral hearing loss disability. 3. Entitlement to an effective date prior to May 1, 2013 for service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Karen Vix, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In October 2017, the Veteran testified at a video-conference Board hearing before the undersigned Veterans Law Judge. A transcript of that 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 issue of rating bilateral hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In August 1979, the RO denied entitlement to service connection for a hearing loss, and the Veteran did not express disagreement or submit new and material evidence within one year. 2. In March 2005, the RO denied an application to reopen the claim for service connection for hearing loss, and the Veteran did not express disagreement or submit new and material evidence within one year. 3. The Veteran has not asserted a valid theory of clear and unmistakable error in a prior denial of service connection for hearing loss disability. 4. An application to reopena claim for service connection for hearing loss disability was received May 1, 2013. 5. The AOJ granted the Veteran a 70 percent rating for posttraumatic stress disorder (PTSD). 6. The Veteran, through his representative, has stated that his appeal with regard to posttraumatic stress disorder was granted in full. CONCLUSIONS OF LAW 1. The August 1979 and March 2005 decisions denying service for hearing loss are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The criteria for entitlement to an effective date earlier than May 1, 2013 for the award of service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 3. There is no alleged specific error of fact or law with regard to the Veteran's posttraumatic stress disorder rating appeal. 38 U.S.C. § 7105(d)(5) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), and implementing regulations, impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A. Where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). As such, the Board finds that there is no prejudice in proceeding with a decision at this time. With regard to VA's duty to assist, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c) and (d). VA has obtained the Veteran's service treatment records, post-service private and VA treatment records, and the Veteran's statements in support of his claim. Accordingly, the Board finds that VA has complied with the duty to assist with regard to the earlier effective date claim. During the October 2017 hearing, the undersigned Veteran's Law Judge clarified the issues on appeal and noted a potential evidentiary defect. The actions of the undersigned Veteran's Law Judge supplement VCAA and complies with 38 C.F.R. § 3.103. II. Effective Date In a June 2014 notice of disagreement, the Veteran stated he is seeking an earlier effective date for bilateral hearing loss. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). 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 (1992). i. Final Decisions In June 1979, the Veteran filed a claim for service connection for hearing loss. On the application, the Veteran stated his hearing loss occurred prior to January 1970, the month he separated from service. In August 1979, the RO denied the Veteran's claim. The Veteran was notified of the rating decision and of his appellate rights, but he did not express disagreement or provided new and material evidence within one year of the denial. Therefore, the August 1979 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.302, 20.1103. In September 2004, the Veteran filed an application to reopen his claim for entitlement to service connection for hearing loss. In a March 2005 rating decision, the RO declined to reopen his claim due to a lack of new and material evidence. Again, the Veteran did not express disagreement or provide new and material evidence within one year of notification of the decision. The Veteran did not file any other claim for hearing loss, except for the March 1, 2013 claim currently on appeal. Here, the Board is presented with prior final decisions. Between the final decisions and the claim to reopen, there were no claims, informal claims or intent to file claims for hearing loss disability. In essence, the appellant seems to be attempting to re-litigate the prior final decisions. This is prohibited. Rudd v.Nicholson, 20 Vet. App. 296 (2006). At the Court has noted, such a possibility vitiates the rule of finality. To this extent, the appeal is dismissed. ii. Clear and Unmistakable Error (CUE) In a November 2014 statement in support of his claim, the Veteran requested an earlier effective date and stated: "I believe a clear and unmistakable error may have been made. My hearing had diminished at my time of discharge. The Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) 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 or regulatory provisions extant at the time were incorrectly applied, (2) the error must be undebatable and of the sort which, had it 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 prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). A review of the Veteran's service treatment records does not reveal an injury to his ears. A December 1969 separation audio examination revealed a change in hearing when compared to a 1963 examination, but the Veteran's hearing was still within normal limits. Furthermore, on an accompanying December 1969 Report of Medical History, the Veteran did not report any ear trouble. All the relevant evidence was of record at the time of the August 1979 decision. This is not undebatable evidence of in-service hearing loss. To the extent that the Veteran's claim encompasses a request for a reweighing of the evidence, such is impermissible in a CUE claim. Luallen v. Brown, 8 Vet. App. 92 (1995); At the November 2017 hearing, in support of Veteran's claim, the Veteran's representative contended there was no hearing examination from 1979 on file. Review of the claim file, including the August 1979 rating decision, does not indicate a hearing examination was provided to the Veteran, and that the claim was denied due to a lack of evidence of hearing loss in service. A contention that a hearing examination should have been provided in 1979 would not support a claim of clear and unmistakable error. The failure to obtain an examination, a possible deficiency with VA's duty to assist, cannot constitute clear and unmistakable error as a matter of law. See 38 C.F.R. § 20.1403(d)(2) (one example of a situation that is not CUE is "[t]he Secretary's failure to fulfill the duty to assist"); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) ("an incomplete record, factually correct in all other respects, is not clearly and mistakably erroneous"). In light of the above, the record does not support an earlier effective date due to clear and unmistakable error. Accordingly, the Veteran's claim for an earlier effective date for service connection for bilateral hearing loss must be denied. III. Withdrawal of Increased Rating Claim - PTSD When there is no case or controversy, or when a once live case or controversy becomes moot, the Board lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992); Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990). In a May 2016 rating decision, the RO granted a 70 percent rating for posttraumatic stress disorder, effective April 28, 2016. The Veteran, at his November 2017 hearing and through his representative, informed the undersigned Veterans Law Judge that the grant of 70 percent satisfied his appeal. The Veteran was informed that this would be accepted as a withdrawal of the issue and the Veteran, through his representative, agreed. Given that the 70 percent rating sought by the Veteran has been granted, there is no "controversy" or "issue" currently before the Board as the claim has been resolved in the Veteran's favor. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (a case or controversy must exist in order to obtain appellate review). The law provides that the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5) (2012). As the Veteran has received a full grant of the benefit sought, for PTSD, there remains no error of fact or law for the Board to address, and the appeal must be dismissed. ORDER The appeal of entitlement to an effective date earlier than May 1, 2013 for the award of service connection for bilateral hearing loss is dismissed. The appeal of entitlement to an increased rating for posttraumatic stress disorder is dismissed. REMAND The Veteran was last afforded a VA examination related to his hearing loss claim in April 2016. However, since that examination, the Veteran testified to an increase in problems with his hearing. See November 2017 hearing transcript. Additionally, the Veteran testified to receiving a new or adjusted hearing aid within the month prior to his November 2017 hearing. In light of the Veteran's reported worsening hearing problems, the Board finds an additional examination is required to assess the current state of the Veteran's bilateral hearing loss disability. 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. Obtain outstanding relevant VA records of evaluation and/or treatment since December 2016. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral hearing loss disability. The claim file should be made available to and reviewed by the examiner. 3. After the development has been completed, adjudicate the claims. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs