Citation Nr: 20007451 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 16-55 780 DATE: January 30, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to an effective date prior to August 20, 2014, for the grant of service connection for post-traumatic stress disorder (previously rated as an adjustment disorder with a depressed mood) is denied. REMANDED Entitlement to an effective date prior to September 27, 2016 for a grant of a 50 percent rating for post-traumatic stress disorder is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss is related to in-service noise exposure. 2. The Veteran did not file either a formal or informal claim for entitlement to service connection for post-traumatic stress disorder prior to August 20, 2014. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, a bilateral hearing loss was incurred during active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for assignment of an effective date prior to August 20, 2014, for the grant of service connection for post-traumatic stress disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a June 2019 videoconference hearing before the undersigned. A transcript of those proceedings is associated with the record. 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. § 1110; 38 C.F.R. § 3.303. 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). To establish entitlement to service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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. The failure to meet these criteria at the time of a veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993); 38 C.F.R. § 3.303(d). Service connection for a sensorineural hearing loss may be granted if the disorder is compensably disabling within one year of a veteran’s separation from active duty. 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that he has a hearing loss disability which was caused by inservice noise exposure. The Veteran testified in June 2019 that he had served in combat as a Marine mortarman and machine gunner in Vietnam, and was exposed to a great deal of noise. The appellant stated that he first experienced hearing loss in the early 2000’s. In a February 2015 rating decision, entitlement to service connection for bilateral hearing loss was denied on the basis that there was no competent medical evidence linking the Veteran's hearing loss with his military service, and no evidence that a sensorineural hearing loss was compensably disabling within one year of discharge from active duty. After a review of the evidence the Board finds that there is adequate evidence to grant the claim of entitlement to service connection for a bilateral hearing loss. Audiological examinations of record show that the Veteran meets the current disability requirement, as he has bilateral hearing loss of sufficient severity to find that he suffers from a hearing loss disability pursuant to 38 C.F.R. § 3.385. Additionally, the Board finds credible the Veteran's assertions of service in an adverse acoustic environment in view of his combat service as an infantryman and mortarman in Vietnam. Regarding the third element required for service connection, that of a causal relationship between the current disability and service, the Board finds that the evidence is at least in equipoise. See 38 C.F.R. § 3.102. In this regard, a September 2019 medical treatment note in the Veteran’s VA records details how the appellant has significant hearing loss secondary to military service as a mortarman and machine gunner. The note goes on to state that “his service in Vietnam and jobs in the service are likely cause ot his significant hearing loss.” The Board acknowledges that the February 2015 VA examination opinion weighs against the claim. When, however, there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The Board therefore finds that the Veteran suffered acoustic trauma in service and that he has a bilateral hearing loss as defined by 38 C.F.R. § 3.385. Further, the evidence is at least in equipoise regarding the relationship between the Veteran's hearing loss and his in-service noise exposure. Therefore, after resolving reasonable doubt in the appellant’s favor, the Board will grant entitlement to service connection for bilateral hearing loss. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding… benefits.”). Earlier effective date Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of application therefor. 38 U.S.C. § 5110 (a). The effective date shall be the date of receipt of the Veteran's claim or the date on which entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). The Veteran does not dispute that his initial claim of entitlement to service connection for posttraumatic stress disorder was filed on August 20, 2014. However, he argues that an earlier effective date is warranted because he was not aware he could file a claim earlier. While it is regrettable that the appellant was unaware that he could file a claim, such an argument is an appeal for equitable relief which the Board does not have the authority to grant. Indeed, the authority to award equitable relief under law is committed to the sole discretion of the Secretary. The Board is without jurisdiction to consider that which is solely committed to the Secretary's exercise of that discretion. McCay v. Brown, 9 Vet. App. 183, 189 (1996). Moreover, the law is clear that ignorance of the law cannot be used as an excuse for failure to follow a promulgated regulation. See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). The United States Court of Appeals for Veterans Claims (Court) in Morris noted that the Supreme Court of the United States had held that persons dealing with the government were charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App. at 265. Indeed, the Court has also held that VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. Jernigan v. Shinseki, 25 Vet. App. 220 (2012). The appeal must be denied. REASONS FOR REMAND Service connection for posttraumatic stress disorder was granted in an October 2016 rating decision. This grant recategorized a previous rating for an adjustment disorder with depressed mood and increased the Veteran’s rating to 50 percent, effective September 27, 2016. The Veteran submitted a notice of disagreement with the date of the award, but he also argued that his symptoms were similar during both examinations, but the first examiner would not listen. The Board finds that the Veteran was attempting to get his 50 percent rating assigned back to the original date of eligibility. This issue has not been addressed by the agency of original jurisdiction in a statement of the case. As such, further development is in order. The matters are REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an earlier effective date for the increased rating of 50 percent for post-traumatic stress disorder. If and only if the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should then be returned to the Board for further appellate consideration. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph Montanye, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.