Citation Nr: 21076238 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 17-24 814 DATE: December 23, 2021 ORDER The petition to reopen the previously denied claim for entitlement to service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than June 12, 2013 for the recognition of K.T. as a helpless child for the purpose of additional VA dependency compensation is denied. Entitlement to a rating in excess of 30 percent for intraventricular heart block is denied. FINDINGS OF FACT 1. An unappealed October 2010 rating decision denied the Veteran's original claim for entitlement to service connection for bilateral hearing loss. 2. New and material evidence has not been received since the October 2010 rating decision as to the claim for entitlement to service connection for bilateral hearing loss. 3. A February 2012 rating decision denied recognition of K.T. as a helpless child for the purpose of additional VA dependency compensation; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the February 2012 rating decision. 4. An informal claim for entitlement to increased ratings was received on June 12, 2013; however, no communication was received from the Veteran from February 2012 to June 12, 2013, that reasonably can be interpreted as an informal or formal claim for entitlement to recognition of K.T. as a helpless child for the purpose of additional VA dependency compensation. 5. For the entire rating period on appeal, the Veteran's service-connected heart disability has not been productive of workload of greater than 3 METS but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. CONCLUSIONS OF LAW 1. The October 2010 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. 2. The criteria for reopening the previously denied claim for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for an effective date prior to June 12, 2013, for recognition of K.T. as a helpless child for the purpose of additional VA dependency compensation have not been met. 38 U.S.C. §§ 1115, 5109A, 5110; 38 C.F.R. §§ 3.31, 3.105, 3.401, 3.403. 4. The criteria for a rating in excess of 30 percent for intraventricular heart block have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7015. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2014 rating decision on appeal, the 30 percent evaluation for the service-connected heart disability was continued. In the September 2014 notice of disagreement (NOD), the Veteran indicated that he disagreed with the effective date of the award and the evaluation of this disability. The April 2017 statement of the case (SOC) addressed the issue of entitlement to an increased rating, but not entitlement to an earlier effective date. However, the Board finds that a Manlincon remand of an effective date issue is not legally warranted. See 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). An increased rating appeal requires consideration of the possibility of a higher rating and, if one is warranted, the date as of which any such increase should be assigned. As the June 2014 rating decision did not award an increase, there was no effective date decision with which the Veteran could disagree. A NOD can only be valid in response to an adverse determination by the RO, and here there was no adverse determination in June 2014 with respect to an effective date for the disability rating for the heart disability, as no increase was awarded. As the NOD was not valid with respect to the effective date, the Board has no jurisdiction to remand any earlier effective date claim. In June 2018, the Veteran's previous representative withdrew from the case. Therefore, the Veteran is currently unrepresented. See 38 C.F.R. § 14.631(c). In his May 2017 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge via video-conference. The hearing was scheduled for September 2020, but the Veteran did not attend. He has not offered good cause for his failure to appear at the hearing or request that such be rescheduled. Therefore, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702 (d); 20.704 (d). The AOJ attempted to schedule the Veteran for VA examinations as to his claims for entitlement to service connection for bilateral hearing loss and entitlement to a higher disability rating for intraventricular heart block. The Veteran was scheduled for VA examinations related to his appeal in March 2014. However, the Veteran failed to appear at the VA examinations. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000); 38 C.F.R. § 3.159 (c). The Board will therefore proceed with appellate consideration based on the evidence of record. See 38 C.F.R. § 3.655 (When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be decided based on the evidence of record). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran has not raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. The Veteran seeks to reopen his previously denied claim for entitlement to service connection for bilateral hearing loss. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156 (a) to have a finally denied claim reopened under 38 U.S.C. § 5108. The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. VA received the Veteran's original claim for entitlement to service connection for bilateral hearing loss in April 2010. The Veteran was scheduled for a VA audiology examination in June 2010. However, the Veteran failed to appear for the examination. In October 2010 the RO denied the Veteran's claim for entitlement to service connection for bilateral hearing loss since there was no evidence of a current disability. The Veteran did not submit a timely notice of disagreement as to the October 2010 rating decision, and new and material evidence as to the issue was not received within the one-year appeal period following issuance of the October 2010 rating decision. As such, the Veteran did not complete a timely appeal of the October 2010 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 19.20, 19.21, 19.52, 20.1103. Evidence received since the October 2010 rating decision that is relevant to the issue of entitlement to service connection for bilateral hearing loss is the Veteran's VA treatment records. As noted above, the Veteran did not appear at his scheduled VA audiological examination in March 2014. The Veteran's VA treatment records, while new, are not material as they do not contain evidence of a current bilateral hearing loss disability. In view of the foregoing, the Board finds that the evidence of record contains no new and material evidence received since the final October 2010 rating decision as to the previously denied claim for entitlement to service connection for bilateral hearing loss. Therefore, new and material evidence to reopen the final denied claim has not been received, the benefit-of-the-doubt doctrine is not for application, and the claim for entitlement to service connection for bilateral hearing loss is not reopened. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to an effective date earlier than June 12, 2013, for recognition of K.T. as a helpless child for the purpose of VA dependency compensation The law provides that an additional amount of compensation may be payable for a spouse and child where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C. § 1115; 38 C.F.R. § 3.4 (b) (2). The Veteran seeks entitlement to an effective date earlier than June 12, 2013, for recognition of K.T. as a helpless child for the purpose of VA dependency compensation. Applicable law and regulations provide that the effective date for a grant of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Regulations that were in effect prior to March 24, 2015, required that an informal claim "must identify the benefit sought." See 38 C.F.R. §§ 3.155, 3.160 (2014). The regulations also provided that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1 (p) (2014). The regulations in effect since March 24, 2015, require that claims be submitted on an application form prescribed by the Secretary and do not allow for informal claims not submitted on such a form. See 38 C.F.R. §§ 3.155, 3.160 (2015). The Board will apply the regulations in effect prior to March 24, 2015, to communications received during that period. In this case, the February 2012 rating decision denied the Veteran's original claim for entitlement to recognition of K.T. as a helpless child for the purpose of VA dependency compensation. Upon careful review of the record, the Board finds that the earliest communication received from the Veteran following issuance of the February 2012 rating decision that could reasonably be construed as a request for a determination of entitlement to, or that evidences a belief in entitlement to recognition of K.T. as a helpless child for the purpose of VA dependency compensation, is the, VA Form 21-4138, Statement in Support of Claim, received on June 12, 2013, and on which the Veteran requested a higher disability rating for his service-connected heart disability. Additionally, on June 19, 2014, VA received K.T.'s Social Security Records reflecting he was diagnosed with chronic myeloid leukemia prior to his eighteenth birthday and is considered disabled per Social Security. Earlier communications from the Veteran do not indicate that the Veteran requested a determination of entitlement, or evidencing a belief in entitlement, to a benefit. As such, June 12, 2013, the date VA received the Veteran's petition to reopen the previously denied claim, is the earliest date on which entitlement to recognition of K.T. as a helpless child for the purpose of VA dependency compensation may be granted. See 38 C.F.R. § 3.400. To the extent that the Veteran asserts that he is entitled to an effective date based on his earlier claim, the Board reiterates that the claim was decided in the February 2012 rating decision. The Veteran did not complete an appeal as to any aspect of that decision, and there has been no adjudicatory finding of CUE in that decision. Therefore, the decision is final, and the earlier claim may not serve as a basis for an earlier effective date for the recognition of K.T. as a helpless child for the purpose of VA dependency compensation. Furthermore, there is no basis in VA law for a freestanding claim for an earlier effective date for matters addressed in a final decision. Any attempt to overcome the finality of the February 2012 rating decision by raising a freestanding claim for entitlement to an earlier effective date in conjunction with the current appeal must fail. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). The Board's finding in this regard does not prejudice any future adjudication of a claim of CUE in the February 2012 rating decision. In view of the foregoing, the Board concludes that June 12, 2013, is the appropriate effective date for the recognition of K.T. as a helpless child for the purpose of VA dependency compensation. 38 C.F.R. § 3.400. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than June 12, 2013, for the recognition of K.T. as a helpless child for the purpose of VA dependency compensation, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert, 1 Vet. App. 49. 3. Entitlement to a higher disability rating for intraventricular heart block is denied. The Veteran seeks entitlement to a disability rating in excess of 30 percent for his service-connected intraventricular heart block. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's heart disability has been evaluated under Diagnostic Code 7015, which provides that a 60 percent rating is warranted where, in pertinent part, a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope. As noted above, the Veteran did not appear for the VA examination scheduled related to his claim for a rating in excess of 30 percent for his service-connected intraventricular heart block. Additionally, the Veteran's medical treatment records do not contain evidence that the Veteran's intraventricular heart block manifested in workload of greater than 3 METS but not greater than 5 METS resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. As such, the records do not show that the Veteran had workload of greater than 3 METS but not greater than 5 METS resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent during the entire period on appeal. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature and severity of his service-connected heart disability at issue, and notes that his lay testimony is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are noted to be contemplated by the criteria for the disability rating for which the Veteran has been found entitled by the Board. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's statements with regard to the matters, he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. The Board therefore finds that the criteria for a rating in excess of 30 percent for the Veteran's service-connected intraventricular heart block have not been met at any time during the rating period. Accordingly, there is no basis for staged ratings of the Veteran's intraventricular heart block pursuant to Fenderson, 12 Vet. App. at 126-27, and a higher rating must be denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Ver. App. 49 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.