Citation Nr: 1808492 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 06-29 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss to include on an extraschedular basis. 2. Whether the March 1953 rating decision was final as it related to a claim of entitlement to service connection for a low back disability REPRESENTATION Appellant represented by: Jeany Mark, Esq. ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1949 to September 1952. He died in August 2016, and his surviving spouse is the substituted appellant. (The appellant's substitution request was granted in January 2017.) These matters come before the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The claims file is now in the jurisdiction of the Los Angeles, California. In a June 2009 decision, the Board declined to reopen a previously denied claim for entitlement to service connection for a low back disability with scoliosis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2010, the Court granted a Joint Motion for Remand (JMR), vacating and remanding the claim to the Board. In January 2011, the Board remanded the issue in accordance with the JMR. In both the June 2009 and January 2011 decisions, the Board remanded the issue of entitlement to an initial compensable rating for hearing loss for additional development. In a February 2016 decision, the Board reopened the previously denied claim of service connection for a low back disability and granted service connection. The Board also denied an initial compensable rating for bilateral hearing loss. The appellant appealed the grant of service connection for the reopened back disorder, with an effective date of the request to reopen and the denial of an increased rating for hearing loss to the Court. In a May 2017 Memorandum Decision, the Court determined that the Board had not provided adequate reasons or bases to find the March 1953 rating decision final and had failed to address evidence of vertigo in the discussion of the initial rating of the Veteran's bilateral hearing loss. Accordingly, the Court set aside the Board's February 2016 decision and remanded the matter for further adjudication. Given the issues addressed before the Court, the issues on appeal are as noted on the title page. 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 entitlement to an initial compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Appellant has provided clear evidence that the VA's regular mailing practices were irregular when mailing the March 1953 rating decision; the presumption of regularity has been rebutted. 2. The Veteran did not receive proper timely notice of the March 1953 rating decision. CONCLUSION OF LAW The March 1953 rating decision is not final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017) 38 C.F.R. § 3.7 (1949); 38 C.F.R. § 1.525(d)(1948). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a February 2016 decision, the Board found that a March 1953 rating decision which denied the Veteran's original claim for service connection for a low back disability was final, but new and material evidence had been received to reopen the claim. The Appellant asserts that the March 1953 rating decision was not final because the Veteran did not receive notice of the decision. The Court has held that there is a presumption of regularity that the Secretary properly discharged official duties by mailing a copy of a VA decision to the last known address of the appellant and the appellant's representative, if any, on the date that the decision is issued. See Woods v. Gober, 14 Vet. App. 214 (2000). The appellant may rebut that presumption by submitting "clear evidence" to the effect that VA's regular mailing practices are not regular or that they were not followed. The burden then shifts to the Secretary to establish that the VA decision was mailed to the claimant. See Ashley v. Derwinski, 2 Vet. App. 307 (1992). Absent evidence that the claimant notified VA of a change of address and absent evidence that any notice sent to the appellant at his or her last known address has been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18 (1996). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the RO level, such as in the instant case. It is clear from these cases that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See Jones v. West, 12 Vet. App. 98 (1998). If a claimant alleges non-receipt of a VA notice letter, clear evidence to rebut the presumption of regularity "mandates not only a declaration by the appellant of non-receipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery." Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). An addressing error is consequential where it "results in an address that does not contain all the necessary address elements" sufficient to enable delivery. Id. at 135; see also Crain v. Principi, 17 Vet. App. 182 (2003); Boyd v. McDonald, 27 Vet. App. 63 (2014). In October 1952, the RO received the Veteran's initial claims of service connection, including a claim for a back disability. He listed his address as in Quincy, Massachusetts. In November 1952, the Veteran's then-representative filed a change of address with the RO, listing the Veteran's address as in Hermosa Beach, California. In January 1953, the Veteran was notified at the Hermosa Beach address that he would be scheduled for a VA examination in conjunction with his claims of service connection. The Veteran was advised to report or have his representative report any change of address to the RO. The examination was conducted in February 1953. The examination report listed the Veteran's address as "General Delivery, Manhattan Beach, California." A March 1953 rating decision denied service connection for a back disability and granted service connection and assigned an initial 10 percent rating for a nervous condition. The rating decision listed the Veteran's address as "[REDACTED]." The notice letter listed his address as "General Delivery, Manhattan Beach, California." The Veteran did not appeal the March 1953 rating decision or submit new evidence within one year of the determination. The Veteran filed the appropriate forms for claiming dependents; his spouse in October 1954 and his child in July 1955. On both forms he listed his address as Manhattan Beach, California. In May 2004, the Veteran filed a claim of entitlement to service connection for back pain. In his September 2006 VA Form 9 substantive appeal the Veteran reported that he did not receive notice of the March 1953 decision. He described that he was "without a mailing address at that time and living temporarily with friends until [he] got situated [] in California." He also described that he learned of this decision years later while seeking medical assistance for his hearing and Reiter's Syndrome. In the February 2016 decision, the Board determined that the March 1953 rating decision was final and that new and material evidence had been received since the March 1953 determination to reopen the claim. The Board granted the claim of service connection for a low back disability. In the Appellant's December 2016 brief before the Court, the Appellant argued that the March 1953 rating decision was not sent to the Veteran's address of record and therefore the mailing of the rating decision was irregular. Appellant noted that the Veteran's then-representative had provided notice in November 1952 to the RO of a new Hermosa Beach address and that the record does not reflect that the Veteran or his then-representative provided a new address prior to the mailing of the March 1953 decision to Manhattan Beach addresses. Appellant further cited to the regulations at that time, which provide that both the veteran and their representative are entitled to notice of any decision made by VA and of their right of appeal. See 38 C.F.R. § 3.7 (1949); 38 C.F.R. § 1.525(d)(1948). In response, the Secretary's February 2017 brief argued that the presumption of regularity had not been rebutted and the evidence of record established that the Veteran had actual knowledge of the March 1953 rating decision. The Secretary argued that the Veteran's address was amended on February 1953 VA examination report (the same address the notification letter was mailed to) and the decision was therefore mailed to the last known address of the Veteran. Alternatively the Secretary argued that both the Veteran and his then-representative at the time had actual knowledge of the rating decision, so any defects of notice would be cured. The Secretary noted that notice of the rating decision was sent to The American Legion, his representative at the time. Further, the evidence showed the Veteran knew of the March 1953 rating decision because he knew of the award and receipt of service connection for anxiety, which was granted in the same decision. The Secretary points to his submission of dependency paper work to show he had knowledge of the grant of service connection for anxiety. In the Appellant's March 2017 reply brief, the Appellant responded to the Secretary's argument that the Veteran's submission of dependency paper work established actual knowledge of the March 1953 rating decision by noting that it was just as plausible to find that the Veteran "believed his claim for benefits remained pending, and he wished to maximize any eventual grant of benefits." The Board finds that the evidence reflects that VA's mailing practices of the March 1953 rating decision were irregular. The Veteran's representative provided a change of address form in November 1952 for an address in Hermosa Beach, California. The Veteran was informed in January 1953 to report any change in address to the RO. No change of address was reported directly to the RO. Instead of mailing the rating decision to the Hermosa Beach, California, the last reported address of record provided to VA by the Veteran or his representative, notification of the decision were mailed to two separate Manhattan Beach, California addresses. The evidence showing that the RO used different addresses on the rating decision and the notice, both of which were different from the last address provided by the Veteran's then-representative, in conjunction with the Veteran's assertions of nonreceipt, constitutes clear evidence to rebut the presumption of regularity of mailing. Thus, the burden shifts to VA to establish that the rating decision was mailed as required or that the Veteran actually received it. See Ashley, 2 Vet. App. at 309. The Board finds that the Secretary has not established that the March 1953 rating decision was mailed to the Veteran. The record reflects that notification of the rating decision was sent to two separate Manhattan Beach addresses. The Secretary argued in the February 2017 brief that the rating decision was sent to the Veteran's last known address of record, as the General Delivery address was listed on the February 1953 VA examination report. However, it is not clear from the record how VA came to use that address; whether that address was provided by the Veteran or written in by the examiner. The last address provided by the Veteran or his representative was the Hermosa Beach address. It was also clear from the record, that the Hermosa Beach address was a valid address, as the January 1953 examination request was sent to that address and not returned as undeliverable. See Cross v. Brown, 9 Vet. App. 18 (1996). The Veteran was also informed in the January 1953 examination request to report any change in address to the RO, and neither he nor his representative did so prior to the March 1953 rating decision. The representative had notified the RO of a change of address in November 1952 and thus the Board concludes the representative would likely have followed the same procedure if another address change was warranted. The Board also finds that the VA has not shown that the Veteran actually received a copy of the March 1953 rating decision. In briefs before the Court, the Secretary argues that Veteran and his representative had actual knowledge of the rating decision, which would cure any notice defect, because the RO provided his representative at the time notice and because he filed dependency paperwork after the March 1953 decision. See Davis v. Brown, 7 Vet. App 298 (1994); Ashley, 2 Vet. App. at 307. However, as noted by the Appellant, regulations at the time required both the Veteran and his representative to be notified of a decision. See 38 C.F.R. § 3.7 (1949); 38 C.F.R. § 1.525(d)(1948). Additionally, the Appellant also noted in the March 2017 reply brief that it was just as plausible that the Veteran filed the dependency paperwork in anticipation of pending benefits. While the Board notes the plausibility of each theory, the Board provides the benefit of the doubt to the Appellant and finds that the Veteran's filing of dependency paperwork does not establish that he had actual knowledge of the March 1953 rating decision. 38 U.S.C. § 5107 (b)(2012); 38 C.F.R. § 3.102 (2017). Accordingly, the evidence is against finding that the Secretary has met his burden to establish that the March 1953 rating decision was mailed to the Veteran. As the Veteran did not received notice of the March 1953 denial of service connection for a back injury, the decision did not become final. See 38 U.S.C. § 5104(a); 38 C.F.R. § 3.104(a); Best v. Brown, 10 Vet. App. 322, 325 (1997). ORDER The March 1953 rating decision that denied service connection for a low back disability is not final. REMAND Regarding the claim of an initial compensable rating for hearing loss, the Court's May 2017 memorandum decision held that the Board provided an inadequate statement of reasons or bases in the discussion of entitlement to an extraschedular rating. Although the Board noted the Veteran reported experiencing vertigo on February 2011 VA examination, it did not address a June 2003 treatment record in which the Veteran reported recent vertigo and an emergency room visit for vertigo. It is unclear from the record whether the vertigo is a symptom of the service-connected hearing loss (and would be important in the analysis of whether an extraschedular rating is warranted) or is a separate disability for which service connection and a separate evaluation would be warranted. On remand, any available treatment records related to the 2003 emergency room visit for vertigo should be obtained. Then a medical opinion should be obtained to determine the likely nature of the complained vertigo. 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. Ask the Appellant to provide the names and addresses of all private medical providers who treated the Veteran for vertigo. After securing the necessary release, take all appropriate action to obtain these records, including records from a June 2003 emergency room visit. 2. After the completion of the above, forward the claims folder and copies of all pertinent records to an appropriate examiner for an advisory medical opinion regarding the likely nature and etiology of the Veteran's vertigo. Based on the record, the examiner should provide answer the following: (a) Is the vertigo complained of in June 2003 and on VA examination in February 2011 a symptom of the service-connected hearing loss or a separate disability? (b) If the vertigo is a separate disability, is it at least as likely as not that the vertigo was caused or aggravated by the Veteran's service-connected bilateral hearing loss? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 3. The AOJ should then review the record and re-adjudicate the claim, to include whether a separate rating for vertigo is warranted. If the benefit remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Appellant and her attorney opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs