Citation Nr: 1808793 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-00 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for sleeping problems. 2. Entitlement to service connection for sterility, to include as a result of Agent Orange exposure. 3. Entitlement to an initial disability rating in excess of 30 percent for bilateral hearing loss. 4. Entitlement to an initial disability rating in excess of 10 percent for tinnitus. 5. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 6. Entitlement to an earlier effective date prior to October 1, 2009, for the grant of service connection for PTSD. 7. Entitlement to an earlier effective date prior to October 1, 2009, for the grant of service connection for bilateral hearing loss, to include as whether there was clear and unmistakable error (CUE) in a December 1976 rating decision.. 8. Entitlement to an earlier effective date prior to October 1, 2009, for the grant of service connection for tinnitus, to include as whether there was clear and unmistakable error (CUE) in a December 1976 rating decision.. REPRESENTATION Veteran represented by: James R. Morgan, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In January 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The issue of entitlement to an initial disability rating in excess of 50 percent for PTSD 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 January 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal is requested on the issues of entitlement to service connection for sleeping problems and sterility, as well as entitlement to initial increased disability ratings for bilateral hearing loss and tinnitus. 2. Prior to October 1, 2009, there is no medical or lay evidence of record suggesting the Veteran was either diagnosed with PTSD or experienced symptoms of a mental health condition. 3. The Veteran's claim seeking entitlement to service connection for hearing loss was initially denied in a December 1976 rating decision that became final. Rating decisions dated in January 1977 and April 1981 continued that denial. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. 4. In an August 2010 rating decision, the Veteran was granted service connection for his bilateral hearing loss and tinnitus; the RO assigned the effective date for the Veteran's disability as October 1, 2009, the date the application to reopen was received. 5. The December 1976 rating decision that denied service connection for hearing loss was reasonably supported by evidence then of record, and the record does not demonstrate that the RO incorrectly applied the statutory or regulatory provisions extant at that time, or that the correct facts, as known at that time, were not considered. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran involving claims seeking entitlement to service connection for sleeping problems and sterility, as well as entitlement to initial increased disability ratings for bilateral hearing loss and tinnitus, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for assignment of an effective date prior to October 1, 2009, for the award of service connection for the Veteran's PTSD have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 3.155 (2014); 38 C.F.R. §§ 3.155, 3.400 (2017). 3. The criteria for assignment of an effective date prior to October 1, 2009, for the award of service connection for the Veteran's bilateral hearing loss, to include as a result of CUE in a December 1976 rating decision, have not been met. 38 U.S.C.A. §§ 1155, 5107, 7105 (West 2014); 38 C.F.R. § 3.155 (2014); 38 C.F.R. §§ 3.105, 3.155, 3.400 (2017). 4. The criteria for assignment of an effective date prior to October 1, 2009, for the award of service connection for the Veteran's tinnitus, to include as a result of CUE in a December 1976 rating decision, have not been met. 38 U.S.C.A. §§ 1155, 5107, 7105 (West 2014); 38 C.F.R. § 3.155 (2014); 38 C.F.R. §§ 3.105, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran stated at his videoconference hearing on January 2017 that he intended to withdraw his appeal on the issues of entitlement to service connection for sleeping problems and sterility, as well as entitlement to initial increased disability ratings for bilateral hearing loss and tinnitus. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on these four issues and they are dismissed. II. Earlier Effective Date The Veteran seeks an effective date earlier than October 1, 2009, for the award of service connection for his service-connected PTSD, bilateral hearing loss, and tinnitus. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). Prior to March 2015, VA would accept an informal claim-i.e., any communication or action indicating an intent to apply for one or more benefits, 38 C.F.R. § 3.155(a) (2014)-as an original claim for effective date purposes. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014) amends inter alia, 38 C.F.R. § 3.155, entitled Informal claims. The abolition of informal claims applied only with respect to claims and appeals filed 180 days after the date the rule is published in the Federal Register as a final rule, i.e., after March 24, 2015. 79 Fed. Reg. at 57,686. As the claims at issue here are prior to March 2015, the Board will consider whether there are any informal claims. To qualify as an informal claim, a written document must evince an intent to apply for benefits and identify the benefits sought. See MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006); Brokowski v. Shinseki, 23 Vet.App. 79 (2009). Although VA "is not required to conjure up issues that were not raised by the claimant," Brannon v. West, 12 Vet.App. 32 (1998); see Criswell v. Nicholson, 20 Vet.App. 501 (2006), VA must be mindful, when determining whether a filing constitutes an informal claim for service connection, of its "duty to fully and sympathetically develop a . . . claim to its optimum" by "determin[ing] all potential claims raised by the evidence [and] applying all relevant laws and regulations," Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); see Ephraim v. Brown, 5 Vet.App. 549 (1993). Previous determinations on which an action was predicated, including decisions regarding increased evaluations, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105 (a). CUE 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. See, e.g., Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions then in extant at the time were incorrectly applied; and (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006); see, e.g., Damrel, 6 Vet. App. at 245; Russell, 3 Vet. App. at 313-14. A failure in the duty to assist does not establish CUE. A purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" to vitiate the finality of a prior, final decision. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). PTSD The Veteran and his representative asserted at the January 2017 Board hearing that the Veteran "made a qualifying claim communication in 1977, requesting one or more benefit and requesting disability based on a variety of symptoms." The Veteran's representative then claimed that an adjudication of a PTSD claim was not made because PTSD was not yet recognized as a formal disability. However, in this case, the Board finds that an earlier effective date for the Veteran's service-connected PTSD is not warranted prior to October 1, 2009. There is simply no medical evidence of record prior to this date documenting any diagnosis or symptoms of a mental health condition. Further, the Veteran has never submitted any statements prior October 1, 2009 describing any symptoms indicative of PTSD or indicating any intent to file a claim for benefits for any sort of mental health condition. Rather, his November 1976 application for benefits - which the Veteran's representative apparently references in argument and submitted statements in support of the Veteran's claim - clearly shows that the only benefit the Veteran claimed at that time was entitlement to service connection for hearing loss. There was no indication that he raised an issue of entitlement to service connection for PTSD in any communications prior to October 1, 2009. Therefore, entitlement to the benefit did not arise prior to October 1, 2009. An effective date earlier than October 1, 2009, for the grant of service connection for PTSD is not possible. The Board finds that there is no legal basis by which an effective date for the grant of service connection for PTSD prior to October 1, 2009 can be assigned; hence, the claim for an earlier effective date must be denied. 38 C.F.R. § 3.400 (b)(2)(i). Hearing loss and tinnitus The Veteran's attorney generally maintains that symptoms of bilateral hearing loss and tinnitus were present at the time of his discharge from active duty service The Veteran's initial claim seeking service connection for hearing loss was received on November 30, 1976. In a December 1976 rating decision, the RO denied the claim because his available service medical records indicate that the Veteran was never treated, and there was never any finding or diagnosis of a hearing problem while in service. Subsequently, the Veteran submitted a December 1976 treatment record indicating he had complained of hearing loss for several years. The Veteran was noted to have a diagnosis of profound bilateral neurosensory hearing loss above 1000 Hertz. In January 1977, the Veteran was notified by an RO that this evidence did not warrant any change in the previous determination as to the Veteran's hearing loss claim. The notification also included notice of appellate rights. The Veteran did not appeal, or submit new and material evidence within one year of that decision and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. In March 1981, the Veteran submitted a statement which the RO interpreted as an application to reopen a claim for compensation for hearing loss. In May 1981, the Veteran was notified that the evidence did not warrant any change in the prior determination of the Veteran's service connection claim for hearing loss. The notification letter included notice of his appellate rights. In January 1983, the Veteran submitted another letter requesting to reopen his service connection claim for hearing loss, adding that he planned to submit medical documents showing he has been treated for his hearing loss "off and on since he left the service." This request was denied in an April 1983 letter from a VA adjudication officer who noted that VA did not receive the medical evidence promised to be submitted by the Veteran. The VA adjudication officer then stated that such evidence "should show that a hearing loss began within a year after service and that it still exists." The Veteran was notified that he should submit the evidence "as soon as possible, preferably within 60 days. In any case, it must be received in the Veterans Administration within one year from the date of this letter, otherwise, benefits, if entitlement is established, may not be paid prior to the date of its receipt." In June 1984, the Veteran again submitted a letter stating that he has not heard from VA regarding his petition to reopen his service connection claim. He further stated that he called VA in June 1984 and he was told to resubmit his claim, adding that he "would like to start again." In response, a VA adjudication officer wrote the Veteran in June 1984 stating that VA "wrote you on April 25, 1983 stating that no further action could be taken on your claim unless we received the medical evidence you promised in your statement dated January 6, 1983." The adjudication officer noted that letters sent to the Veteran on January 6, 1977 and January 17, 1977 informed him that service connection for hearing loss could not be allowed. The Veteran was informed that he did not appeal the decision within one year from the date of the letter, so the decision was final in the absence of new and material evidence showing hearing loss within one year after service and also showing that such hearing loss still exists. In October 2009, the Veteran submitted a claim for benefits later interpreted to be a request to reopen his claim for service connection for hearing loss. The Veteran was subsequently scheduled for a VA audio examination in January 2010. A VA examiner concluded that it was at least as likely as not that the Veteran's hearing loss and bilateral tinnitus were due to noise while in the military. Service connection was granted in the August 2010 rating action on appeal. Initially, the Board finds that an earlier effective date for the Veteran's service-connected tinnitus is not warranted prior to October 1, 2009. There is simply no medical evidence of record prior to this date documenting any diagnosis or symptoms of tinnitus. Further, the Veteran has never submitted any statements prior October 1, 2009 describing any symptoms indicative of tinnitus or indicating any intent to file a claim for benefits for tinnitus. Rather, his November 1976 application for benefits - which the Veteran's representative apparently references at the hearing and submitted statements in support of the Veteran's claim - clearly shows that the only benefit the Veteran claimed at that time was entitlement to service connection for hearing loss. Therefore, entitlement to service connection for tinnitus did not arise prior to October 1, 2009. Thus, an effective date earlier than October 1, 2009, for the grant of service connection for tinnitus is not possible. With respect to the Veteran's earlier effective date claim for hearing loss, the Board also finds that the Veteran's claims folder contains no correspondence from him filed after June 1984 letter from the VA adjudication officer and prior to the October 1, 2009 petition seeking to reopen his service connection claim for hearing loss. There is also no objective evidence of any submission from the Veteran declaring an intention to open a claim seeking entitlement to service connection for tinnitus prior to October 1, 2009. The only other possible basis for an effective date earlier than that assigned is to show clear and unmistakable error (CUE) in a prior final rating decision. See 38 C.F.R. § 3.105 (a). For the reasons that follow, the Board concludes that Veteran's CUE claim cannot prevail. The December 1976 rating decision was not clearly and unmistakably erroneous. The Veteran appears to essentially argue that the same facts the served as the basis for the grant of service connection in August 2010 were of record in December 1976, namely, that the Veteran has been suffering with symptoms of hearing loss since his discharge from active duty service. The Board finds that the correct facts, as they were known at the time, were before the RO at the time of the December 1976 rating decision. The evidence included the Veteran's service medical records, as well as a post-service treatment record noting a diagnosis of hearing loss. However, none of these records related the Veteran's hearing loss to his active duty service or within a presumptive period. The Veteran's service treatment records did not show any diagnoses, treatments or complaints related to hearing loss, and his post-service treatment record did not indicate that his present hearing loss was in any way related to active duty service. Following a review of the evidence of record, the Board finds that at the time of the December 1976 rating decision denying the Veteran's service connection claim, the claims file did not contain evidence that the Veteran's hearing loss was causally related to, or aggravated by, active duty service. There was also no evidence that the Veteran's hearing loss manifested within one year of active duty service. See 38 C.F.R. § 3.307 (a)(3). The December 1976 rating decision was properly based on the evidence of record at the time of that decision. The evidence of record is against a finding that there was CUE in the December 1976 rating decision. The evidence of record does not support a finding that the correct facts, as they were known at the time of the December 1976 rating decision, were not before the adjudicator, or that regulatory provisions then in extant at the time were incorrectly applied. A claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. The evidence does not support a finding that there was an undebatable error in the December 1976 rating decision which, had it not been made, would have manifestly changed the outcome at the time it was made. Stallworth v. Nicholson, 20 Vet. App. 482 (2006). As to any contention that VA's failure to assist the Veteran by affording him a VA examination in connection with his initial claim for service connection, this contention is specifically precluded by the applicable regulation. See 38 C.F.R. § 20.1403 (d)(2). In sum, there is no showing that the RO committed CUE in the December 1976 rating decision. As CUE has not been demonstrated, the claim for an earlier effective date on the basis of CUE must be denied. ORDER Entitlement to service connection for sleeping problems is dismissed. Entitlement to service connection for sterility due to Agent Orange exposure is dismissed. Entitlement to an initial disability rating in excess of 30 percent for bilateral hearing loss is dismissed. Entitlement to an initial disability rating in excess of 10 percent for tinnitus is dismissed. Entitlement to an earlier effective date prior to October 1, 2009, for the grant of service connection for PTSD is denied. Entitlement to an earlier effective date prior to October 1, 2009, for the grant of service connection for bilateral hearing loss is denied. Entitlement to an earlier effective date prior to October 1, 2009, for the grant of service connection for tinnitus is denied. REMAND The Veteran was last afforded a VA examination to assess the severity of his PTSD in July 2010. At his January 2017 Board hearing, the Veteran provided sworn testimony that he has experienced worsening symptoms of his service-connected disability since his last examination. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Thus, as the record indicates a potential worsening of the Veteran's PTSD since the last examination, and the last examination was conducted more than seven years ago, a new examination should be obtained on remand. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran dated since February 2017. If no medical records are available, this should be noted in the Veteran's claims file. 2. Then schedule the Veteran for a VA examination to determine the current severity of his service-connected PTSD. The claims folder and all pertinent records should be made available to the examiner for review. The examiner should discuss the symptomatology exhibited by the Veteran and the level of occupational and social impairment caused by PTSD. The examiner should address any functional impairment caused by the Veteran's disability. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. 3. After conducting any other development deemed necessary, readjudicate the Veteran's claims. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs