Citation Nr: 21074118 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-35 936 DATE: December 14, 2021 REMANDED Entitlement to an initial compensable disability rating for bilateral hearing loss prior to March 2, 2015 (claimed as entitlement to an earlier effective date for a 10 percent disability rating for bilateral hearing loss) is remanded. REASONS FOR REMAND The Veteran served in the United States Air Force on active duty from June 1966 to April 1970. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As the procedural course of the Veteran's claim is at issue in this appeal, a procedural history is provided below. In a January 2012 rating decision, the agency of original Jurisdiction (AOJ) granted the Veteran's bilateral hearing loss service connection claim with a noncompensable disability rating, effective November 10, 2010, the date the Veteran filed his claim for service connection. The Veteran then filed a VA Form 21-526b, Veteran Supplemental Claim, received by VA in February 2012, requesting an increased evaluation for his bilateral hearing loss disability. The RO continued the Veteran's noncompensable rating for bilateral hearing loss in a September 2012 rating decision. The Board notes the Veteran's claims file is absent of evidence or procedural records following the September 2012 rating decision until the Veteran's February 2015 correspondence, received into the record March 3, 2015. In the February 2015 letter, the Veteran wrote "[a]fter numerous appeals and requests for testing" he was finally tested and given hearing aids by VA in January 2015. The Veteran wrote that he deserved compensation for his service-connected hearing loss back to November 10, 2010, the effective date of service connection. In a March 2015 letter, the RO informed the Veteran that the previous letter represented an informal claim for benefits. The Veteran sent an additional statement in support, received into the record on March 23, 2015, requesting appropriate compensation for his bilateral hearing loss going back to the date of the award of service connection. In a July 2015 rating decision, the RO granted a 10 percent evaluation for hearing loss, effective March 23, 2015. Additionally, the rating decision continued the Veteran's 10 percent rating for tinnitus, and denied claims for service connection for diabetes and hypothyroidism. In a July 2015 Notice of Disagreement, the Veteran challenged the July 2015 rating decision that granted a 10 percent rating for his bilateral hearing loss. Additionally, the Veteran contested the effective date of this award. The Veteran also noted disagreement with the AOJ's denial of service connection for diabetes and hypothyroidism. The RO provided a Statement of the Case (SOC) in June 2017, which presented the Veteran's contested claims as: entitlement to an effective date earlier than March 23, 2015, for the assignment of a 10 percent disability rating for bilateral hearing loss; entitlement to service connection for diabetes; and entitlement to service connection for hypothyroidism. The Veteran filed a timely VA Form 9, Appeal to Board of Veterans' Appeals, in July 2017, appealing all issues listed on the SOC. In January 2020, the Board granted an earlier effective date for the award of the Veteran's 10 percent disability rating for bilateral hearing loss, effective March 2, 2015, the date of the Veteran's informal increased rating claim. The Board decision recognized the July 2015 Notice of Disagreement included the Veteran's challenge to the 10 percent rating for bilateral hearing loss. The Board raised the issue of entitlement to an increased disability rating for bilateral hearing loss, and remanded the issue to the AOJ for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Additionally, the Board remanded the Veteran's claims of service connection for diabetes and hypothyroidism for further development. The Veteran appealed the Board's January 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court issued a Memorandum Decision vacating the Board's grant of an effective date of March 2, 2015, but no earlier, for the award of a 10 percent disability rating for bilateral hearing loss. The Court concluded that the Board provided an inadequate statement of reasons or bases for finding that the Veteran did not appeal the September 2012 rating decision. The Court noted the Veteran's February 2015 correspondence reflected the Veteran's belief that he had properly appealed the September 2012 rating decision. The Court noted that this favorable piece of evidence raised the possibility that VA lost the Veteran's earlier Notice of Disagreement. The Court vacated the decision and remanded to the Board to address whether the Veteran timely appealed the September 2012 rating decision. In April 2021, the AOJ issued an SOC addressing the Veteran's claim for entitlement to an evaluation exceeding 10 percent disabling for bilateral hearing loss. The Veteran submitted a timely VA Form 9 in May 2021, appealing the award of a 10 percent disability rating for his service-connected hearing loss. Notably, the issues of entitlement to a disability rating in excess of 10 percent for bilateral hearing loss, effective March 2, 2015; entitlement to service connection for hypothyroidism; and entitlement to service connection for diabetes remain pending in remand status. The Board will address these issues at a later date once certified for appellate review. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to March 2, 2015 (claimed as entitlement to earlier effective date for a 10 percent disability rating for bilateral hearing loss) is remanded. The Veteran contends that his bilateral hearing loss has always been severe enough to warrant a compensable disability rating, which should be awarded from the date of service connection. The record contains the Veteran's February 2020 correspondence, in which the Veteran asserted that he appealed the September 2012 rating decision continuing the noncompensable initial disability rating for bilateral hearing loss. The Veteran included a copy of a letter from October 2012 from his records, which stated the Veteran intended to appeal the AOJ's decision that denied his initial increased rating claim. In the October 2012 letter, the Veteran requested that VA award the appropriate compensation back to November 10, 2010, the effective date of service connection for the Veteran's bilateral hearing loss disability. Reviewing the evidence of record in a light most favorable to the Veteran, the Board establishes the Veteran's October 2012 correspondence represents the Veteran's timely notice of disagreement and signaled the Veteran's intent to appeal the previous rating decision granting a noncompensable disability rating for bilateral hearing loss, effective November 10, 2010. Further, the Board notes the Veteran's Supplemental Claim, received by VA in February 2012, can liberally be construed as a timely Notice of Disagreement to the January 2012 rating decision. Accordingly, the evidence of record demonstrates the Veteran continuously pursued his claim and consistently responded to VA correspondence in a timely manner, preserving his claim of entitlement to an increased initial rating for his bilateral hearing loss. The evidence of record demonstrates the Veteran's continuous claim, as is apparent in the Veteran's February 2015 claim for an increased rating and subsequent correspondence requesting an award of a compensable rating for his service-connected hearing loss disability to be awarded November 10, 2010. VA must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). VA's duty to assist applies to the entire claim, which includes assistance in developing more than one theory in support of that claim. See Robinson v. Peake, 21 Vet. App. 545, 552. Further, based on a sympathetic assessment of the veteran's claim, the Board may recharacterize an issue on appeal, or expand or restrict the scope of a particular claim to ensure the veteran is compensated for the full benefit sought. DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011); see Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Here, the Veteran's initial claim for an initial compensable disability rating for bilateral hearing loss encompasses his later claim for an earlier effective date for the award of 10 percent for his hearing loss disability. As the Veteran's October 2012 correspondence demonstrates the Veteran's appeal for an increased initial rating remained pending, the Board recharacterizes the Veteran's present claim as entitlement to an initial compensable disability rating for bilateral hearing loss, prior to March 2, 2015, and in excess of 10 percent thereafter. Finally, the Board notes the RO issued an SOC addressing the Veteran's increased rating claim for a rating in excess of 10 percent for bilateral hearing loss, effective March 2, 2015. This issue remains on remand awaiting further development. The Board has now found that a timely NOD was filed for the issue of entitlement to a compensable initial rating for bilateral hearing loss, prior to March 2, 2015. The AOJ has not yet fully addressed the Veteran's claim for an initial compensable rating for hearing loss prior to March 2, 2015. Accordingly, remand is required to provide the Veteran an SOC to address this procedural deficiency. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: Send the Veteran and his representative an SOC that addresses the issue of entitlement to a compensable initial disability rating for bilateral hearing loss prior to March 2, 2015. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be further developed and returned to the Board for appellate consideration. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.