Citation Nr: 21027316 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-03 569 DATE: May 5, 2021 ORDER 1. Entitlement to an effective date earlier than October 12, 2017 for the award of a 40 percent disability rating for prostate cancer status post radical prostatectomy is denied. 2. Entitlement to an effective date earlier than October 12, 2017 for the award of service connection for left ear hearing loss disability is denied. REMANDED 3. Entitlement to a disability rating in excess of 40 percent for prostate cancer status post radical prostatectomy is remanded. 4. Entitlement to a compensable disability rating for bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for prostate cancer residuals on March 24, 2011. 2. A March 2012 rating decision granted service connection for prostate cancer residuals and assigned a 10 percent disability rating from March 24, 2011. A February 2015 rating decision continued the 10 percent disability rating. Although notified of this decision by a February 2015 letter, which included information concerning his appellate rights, the Veteran did not appeal this decision or submit new and material evidence within one year of the letter; thus, the February 2015 rating decision became final. 3. The Veteran did not submit a claim, either formal or informal, for an increased rating for prostate cancer residuals until October 12, 2017, at which time, he submitted a VA Form 21-526b, Supplemental Claim. 4. In a November 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 40 percent disability rating for the prostate cancer residuals, effective October 12, 2017. There is not a factually ascertainable worsening of the Veteran's symptoms within the one-year period prior to October 12, 2017. 5. On October 12, 2017, the Veteran filed a claim for service connection for a left ear hearing loss disability. An informal claim, formal claim, or written intent to file a claim for service connection for a left ear hearing loss disability had not been submitted prior to October 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than October 12, 2017, for the award of a 40 percent disability rating for prostate cancer residuals have not been met. 38 U.S.C. §§ 5107, 5110, 7105; 38 C.F.R. §§ 3.400, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. The criteria for an effective date earlier than October 12, 2017, for the award of service connection for left ear hearing loss disability have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from April 1969 to April 1973. Earlier Effective Date The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that 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 the later. See 38 C.F.R. § 3.400. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or her representative, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. 1. Entitlement to an effective date earlier than October 12, 2017 for the award of a 40 percent disability rating for prostate cancer status post radical prostatectomy The Veteran is seeking an earlier effective date for the award of the 40 percent disability rating for his prostate cancer residuals prior to October 12, 2017. Neither the Veteran nor the agent has provided contentions in support of this allegation. The record shows that the Veteran's prostate cancer residuals have been rated as 10 percent disabling from March 24, 2011 to October 11, 2017, and 40 percent disabling thereafter, under 38 C.F.R. §§ 4.115a and 4.115b, DC 7528. The evidence shows that the Veteran filed the initial claim for service connection for prostate cancer residuals on March 24, 2011. A March 2012 rating decision assigned a 10 percent disability rating from March 24, 2011. The Veteran was notified of this decision in a March 2012 letter and did not appeal the decision or submit new and material evidence within one year of the letter. The Veteran then filed a claim for an increased rating for prostate cancer residuals on April 29, 2014. A February 2015 rating decision continued the 10 percent disability rating. Although the Veteran was notified of this decision by a February 2015 letter, which included information concerning his appellate rights, he did not appeal this decision or submit new and material evidence within one year of the letter. Thus, the February 2015 rating decision became final. The record also shows that the Veteran did not submit a claim, either formal or informal, for an increased rating for prostate cancer residuals until October 12, 2017, at which time he submitted the VA Form 21-526b, Supplemental Claim. In a November 2017 rating decision, the Veteran was granted a 40 percent disability rating for the prostate cancer residuals, effective from the date of receipt of the VA Form 21-526b. In a December 2017 Notice of Disagreement (NOD), the Veteran disagreed with the effective date assigned for the 40 percent rating for this disability by checking the "effective date" box. Neither the Veteran nor his agent has explained why the Veteran believes he is entitled to an earlier effective date for the increased rating for prostate cancer residuals in his Notice of Disagreement, VA Form 9, Appeal to the Board, or any other submission. As a general matter, prostate cancer is evaluated under DC 7528, which covers malignant neoplasms of the genitourinary system and provides for an initial 100 percent disability rating. The 100 percent disability rating is provided until at least six months following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, at which time a veteran is to be provided a VA examination. 38 C.F.R. § 4.115b, DC 7528, Note. Based upon that or any subsequent VA examination, the disability rating is open to revision in accordance with the criteria set forth in 38 C.F.R. § 3.105(e). If there is no local reoccurrence or metastasis, the service-connected genitourinary disease is to be rated on residuals as a voiding dysfunction or a renal dysfunction, whichever is predominant. The evidence shows that this disability predominantly resulted in voiding dysfunction, which is rated based on urine leakage. A 20 percent rating is warranted when the disability requires that absorbent materials must be changed less than 2 times per day. A 40 percent rating is warranted when the disability requires that absorbent materials must be changed 2 to 4 times per day. A maximum 60 percent rating is warranted when the disability requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. For urinary frequency, a 10 percent rating is warranted for either a daytime voiding interval between 2 and 3 hours or awakening to void 2 times per night. A 20 percent rating is warranted for either a daytime voiding interval between 1 and 2 hours or awakening to void 3 to 4 times per night. A maximum 40 percent rating is warranted for either a daytime voiding interval of less than 1 hour or awakening to void 5 or more times per night. In general, a claimant may not file, and VA has no authority to adjudicate, a freestanding earlier effective date claim, as such a claim would vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Earlier effective date claims must arise on appeal from the rating decision assigned the disputed effective date. Once an adjudication assigning an effective date becomes final, the finality of the effective date may only be overcome by a request for revision based on clear and unmistakable error(CUE). Accordingly, if an adjudication assigning an effective date became final, the Board will dismiss any subsequently filed claim for an earlier effective date for lack of jurisdiction. A dismissal is appropriate, as opposed to a denial, even if the AOJ adjudicated the earlier effective date claim on the merits. Here, the Veteran and his agent have not asserted, nor does the record suggest, that there was a CUE in the February 2015 rating decision that continued the 10 percent disability for the prostate cancer residuals from March 24, 2011. As noted above, the February 2015 rating decision is final. However, because the effective date for an increased rating can be up to one year prior to receipt of the claim for an increased rating, the question remaining for the Board to consider is whether there is a factually ascertainable worsening of the Veteran's symptoms at any time in the one-year period prior to October 12, 2017. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). After a thorough review of the record, the Board finds that there was not a factually ascertainable worsening of the Veteran's prostate cancer residuals symptoms within the one-year period prior to October 12, 2017. The record, including a March 2017 VA treatment record showed that the Veteran's voiding dysfunction symptoms did not result in hesitation or nocturia. An October 2017 VA treatment record showed that the Veteran had hesitation in voiding but not nocturia. Therefore, there was not a factually ascertainable worsening of the Veteran's voiding symptoms such as daytime voiding interval of less than 1 hour or awakening to void 5 or more times per night prior to October 12, 2017. Accordingly, as the preponderance of the evidence is against the claim of entitlement to an effective date prior to October 12, 2017, for the award of a 40 percent disability rating for prostate cancer residuals. The benefit-of-the-doubt rule does not apply, and the claim for an earlier effective date is denied. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.115a, 4.115b, DC 7528. 2. Entitlement to an effective date earlier than October 12, 2017 for the award of service connection for left ear hearing loss disability The Veteran contends that he is entitled to an earlier effective date for service connection for a left ear hearing loss disability, prior to October 12, 2017. The Veteran has not provided arguments in support of this contention. In February 1974, the Veteran first filed a claim for service connection for a hearing loss disability. At the time of the March 1974 VA examination, the Veteran's left ear hearing was within the normal limits for VA purposes, which the Veteran conceded, has he described his current complaint as "loss of hearing in right ear" in the Report of Medical Examination for Disability Evaluation. In a June 1974 rating decision, the Regional Office (RO) granted service connection for right ear hearing loss. The Veteran filed a Supplemental Claim for "hearing loss" on October 12, 2017. In the December 2017 rating decision currently on appeal, the Veteran was granted service connection for left ear hearing loss disability, and assigned a noncompensable disability rating, effective October 12, 2017. In this case, there is no legal authority for the Board to assign an earlier effective date for the award of service connection for left ear hearing loss disability, as the RO has already assigned the earliest possible effective date. After review of the record, the Board finds that there was no communication received prior to October 12, 2017 that established an informal or formal intent to file a claim of service connection for left ear hearing loss disability. On October 12, 2017, VA received the Veteran's claim for service connection for "hearing loss." Service connection for left ear hearing loss disability was awarded in a December 2017 rating decision and the RO, in effectuating the grant, assigned an effective date of October 12, 2017. The effective date will be based upon facts found but will not be earlier than the date of claim. Because the application for service connection for a left ear hearing loss disability was not received until October 12, 2017, and the effective date can be no earlier than the claim, an earlier effective date for the grant of service connection for left ear hearing loss disability is denied. Furthermore, the Board notes that VA audiological evaluations performed in August 2008 and January 2015 showed that the Veteran's left ear hearing loss did not rise to the level of a disability for VA purposes until the November 13, 2017 audiological evaluation. 38 C.F.R. § 3.385. In cases such as this, where the law is dispositive and the case turns on undisputed facts regarding the date of receipt of a claim, the appeal should be denied because of the absence of legal merit. REASONS FOR REMAND 3. Entitlement to a disability rating in excess of 40 percent for prostate cancer status post radical prostatectomy 4. Entitlement to a compensable disability rating for bilateral hearing loss disability is remanded. In December 2018, the Veteran, through his agent, requested the curriculum vitae (CV) for a VA examiner in this claim and appeal. The Board notes that the Veteran's agent did not specifically note which VA examiner he was seeking a CV for. However, pursuant to the Veteran's request, the claim should be remanded to locate the requested record and associate it with the claims file. See Nohr v. McDonald, 27 Vet. App. 124 (2014). The matters are REMANDED for the following action: 1. Send the Veteran and his agent a letter acknowledging the raising a specific challenge to the competence, qualifications, methodology or conclusion of the examiner made in the VA Form 9, Appeal to the Board, received in December 2018. Include a copy of the VA Form 9. Within this letter, the agency of original jurisdiction should inform the Veteran and the agent that the November 2017 examiner who performed the prostate residuals examination is a medical doctor, and the November 2017 examiner who performed the audiological evaluation is an audiologist. Then ask the Veteran and/or the agent to specify which examiner's competence he/they are challenging. 2. Obtain the resume/curriculum vitae of the VA examiner who prepared the applicable examination report and medical opinion requested by the Veteran and/or the agent. Associate this record with the claims file and provide the Veteran and his agent with a copy. If the record is unable to be located, the Veteran and the agent should be so advised and the reasons for such should be noted in the record. 3. If any additional development is performed, the claim(s) should be re-adjudicated. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, 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.