Citation Nr: 22017002 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-37 202 DATE: March 23, 2022 ORDER Entitlement to an earlier effective date prior to February 11, 2010 for the grant of service connection for tinnitus, to include on the basis of clear and unmistakable evidence (CUE), is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT 1. The Veteran did not file a non-final claim for service connection for tinnitus prior to February 11, 2010 and there was no CUE with the January 1976 rating decision. 2. The most probative evidence of record does not indicate the Veteran has bilateral hearing loss for VA purposes that was incurred in or due to his time in service, to include exposure to excessive noise. CONCLUSION OF LAW 1. The criteria for effective date for the grant of service connection for tinnitus prior to February 11, 2010 have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 2. The criteria for the establishment of service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1972 to October 1975. These matters have previously been before the Board, denied, and subsequently reopened. The merits of the matters are therefore before the Board. Earlier Effective Date Claim, to Include Based on Clear and Unmistakable Error (CUE) In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. With regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, it is the date when the veteran met the requirements for the benefits sought, which is determined on a "facts found" basis. 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. For instance, if a veteran filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). An effective date for an increased rating may be assigned later than the date of receipt of the claim, if the evidence shows that the increase in disability actually occurred after the claim was filed, but never earlier than the date of receipt of the claim for increase. In general, "date of receipt" means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1 (r). A claim is "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). From March 24, 2015, a claim must be filed on a designated VA form. See 38 C.F.R. § 3.1 (p); 79 Fed. Reg. 57,696 (Sept. 25, 2014). A claimant may submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155. Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim or intent to file, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999). Finality of VA decisions can be overcome based on clear and unmistakable error. 38 U.S.C. §§ 5109A; 38 C.F.R. § 3.105 (a). The United States Court of Appeals for Veterans Claims (Court) has defined CUE as "an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). "To prove the existence of clear and unmistakable error as set forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that would manifestly change the outcome of a prior decision." Yates v. West, 213 F.3d 1372, 1374 (Fed. Cir. 2000). There is a three-part test to determine whether a prior decision is the product of CUE: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell, 3 Vet. App. at 313-14 (en banc)). The Veteran contents he is entitled to an earlier effective date prior to February 11, 2010 for the grant of service connection for tinnitus. Specifically, in his July 2020 hearing, the Veteran said VA had conceded the Veteran submitted an examination showing that he experienced ringing in his ears back around 1975 or 1976 and that he first filed a claim for tinnitus in 1975 when he got out of service but also confirmed he did not appeal the resulting rating decision that denied his claim. The Veteran also said he tried to document his tinnitus, but that records weren't kept well back then. In an April 2010 rating decision, the RO explained that the Veteran's claim was received on February 11, 2010 but that the Veteran had not appeared for his scheduled examination and that the remainder of his record did not indicate the Veteran had tinnitus that was incurred in or due to his time in service. The Veteran appealed and a November 2013 Board decision granted service connection for tinnitus. A November 2013 rating decision implemented the grant of his benefit, effective February 11, 2010, the date VA received the Veteran's claim. In December 2013, the Veteran requested an effective date of March 1976, not from "the date of my filing of appeal." The Veteran said he was young and had returned home and wasn't up to date on the responsibilities in following up on such matters. The Veteran filed a claim for several conditions, including hearing loss, in October 1975. Notably, this claim does not mention tinnitus. In a January 1976 rating decision, the Veteran was denied service connection for hearing loss and again, no mention was made of tinnitus. No formal appeal was perfected and the decision became final. The Veteran filed a claim to tinnitus that was received by VA on February 11, 2010. In this letter, the Veteran specifically stated he wanted to "reopen" his claim to service connection for hearing loss and that he "also want to claim tinnitus." The language here provides some indication the Veteran knew he had not already filed a claim for tinnitus as he specifically said he wanted to reopen his previously denied claim for hearing loss and wanted to file a claim for tinnitus. Even if this was not the case and the Veteran did not understand the difference of reopening a claim and filing a new claim for a different disability, the Board does not find any communication from the Veteran prior to this date that could be interpreted as a claim for service connection for tinnitus, whether formal or informal. The Bord has reviewed the Veteran's file and notes that there is no communication that could be construed as a claim to service connection for tinnitus prior to the one received on February 11, 2010. The Board notes that it is very possible the Veteran's tinnitus began prior to this date. However, as discussed above, regulations state the earliest effective date for the grant of service connection for a condition is the date the claim is received by VA or the date the disability manifested, whichever is later. Therefore, the Board finds no earlier effective date is warranted for the Veteran's grant of service connection for tinnitus. The Board has also considered whether an earlier effective date is warranted based on CUE. The January 1976 rating decision denying service connection for hearing loss became final. The Board does not find that there were corrects facts that were not before the adjudicator, that the statutory or regulatory provisions were incorrectly applied, or that there was an undebatable error that led to the Veteran not being granted service connection for tinnitus. The evidence at the time does not indicate the Veteran filed a claim to service connection for tinnitus in 1975 and the 1976 rating decision does not, in fact, address this disability. The Board has considered whether, in his 1976 filing for service connection for hearing loss, this could encompass a claim to service connection for tinnitus as well. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). However, the Board notes that these conditions are separate and distinct conditions and claims and while one may result in the other, the Board declines to find that in making a claim for hearing loss, the Veteran also was claiming tinnitus. The Veteran's claim to service connection for tinnitus was denied in an April 2010 rating decision. While the Board understands the Veteran may have thought that when filing a claim to service connection for hearing loss, he was also filing a claim for service connection for tinnitus. The Board also has considered the Veteran's statements that he tried to document his symptoms, but that they weren't recorded. However, the Board declines to result to such speculation about the Veteran's possible intentions over three decades ago. For these reasons, the claim will be denied. Service Connection Claim Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Wagner v. Principi, 370 F.3d 1089 (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 or 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 threshold for normal hearing is 0 to 20 decibels. The Veteran contends he has bilateral hearing loss that was incurred in or due to his time in service. Specifically, in his July 2020 hearing, the Veteran said his hearing loss was due to his military occupational specialty (MOS). The Veteran said he was engineer corps and he was to inspect and deliver equipment and he would travel 600 miles round trip on a daily basis and on numerous occasions, his ears would be numb to the point he couldn't hear anyone for at least an hour. The Veteran said while in service, his duties were to repair and drive heavy equipment. (See also March 2012 hearing transcript.) In March 2010, the Veteran reported he had worked for the United States Postal Service (USPS) for over 15 years and the only noise around him at the time was due to driving his vehicle and traffic around him. The Veteran also reported work in the electronics field where there was little noise. The Veteran said he worked for almost a year as a truck driver collecting recyclables. The Veteran also reported going to school. While in service, the Veteran discussed his exposure to loud noises during basic training, grenade training, rifle and pistol training, and during his work as a heavy equipment repairman. The Veteran reported constant noise while in service whether it was from driving vehicles or repairing them. (See e.g. February 2010, December 2014 statements.) The Veteran's record does not indicate he is diagnosed with hearing loss for VA purposes in his right ear. There is some indication the Veteran may have hearing loss for VA purposes in his left ear. However, while one examination, which is discussed below, shows left ear hearing loss for VA purpose, multiple other examinations indicate the Veteran does not in fact have hearing loss for VA purposes in his left ear. The Veteran's service treatment records (STRs) do not contain any audiogram that shows the Veteran had bilateral hearing loss for VA purpose or otherwise complained of hearing problems while in service. The Board notes there is a pre-induction audiogram reading from October 1972 in the Veteran's file that indicates hearing loss for VA purposes in his left ear. However, a retest of the same ear in January 1973 while in service showed no hearing loss for VA purposes. Additionally, the Veteran's separation audiogram shows no bilateral hearing loss for VA purposes. A January 1976 examination showed, under examination for ears a note that said "hearing - tuning forks" and a box checked noting the Veteran did not have hearing loss. In a May 2010 hearing examination, the Veteran reported he was exposed to excessive heavy equipment, machinery, and diesel engines for prolonged periods of time. The Veteran reported after service he worked around buses and other engines intermittently with consistent use of ear protection. The examiner reported the Veteran did not have hearing loss for VA purpose in either ear. The examiner reported the Veteran had documented hearing loss in his left ear upon entrance into service in 1972. In 1973, the Veteran's hearing loss was retested and thresholds were found to be within normal limits, indicating the initial thresholds may have been exaggerated. The examiner noted again the Veteran's hearing loss was within normal limits at separation. The examiner opined the Veteran's high frequency hearing loss (which is not considered hearing loss for VA purposes) was less likely than not related to his noise exposure while in service. The Veteran submitted a letter from a private audiologist in September 2010. The examiner saw the Veteran in person and accounted for the Veteran's statements that he had trouble hearing speech. This examiner reported audiometric testing showed normal hearing to 2000 Hz and then "sloping mild to moderately severe" hearing loss. The examiner stated she had reviewed the Veteran's medical records and opined it was at least as likely as not his hearing loss was caused by his time in service. The examiner stated that repeated exposure to hazardous sounds eventually caused irreparable damage to parts of the ear, resulting in permanent hearing loss. The examiner reported that equipment used in the military could cause instantaneous hearing loss without recovery. However, this examiner did not indicate a review of the Veteran's STRs were performed. Additionally, while this examiner stated that exposure to hazardous noise made by equipment in the military could cause instantaneous hearing loss, she did not offer an explanation for the fact that the Veteran did not have hearing loss for VA purposes upon separation from service, that there was not a significant shift in thresholds during his time in service, and that it does not appear the Veteran's hearing loss was instantaneous. The examiner also did not offer puretone threshold readings, which could indicate some level of hearing loss, but that it did not amount to hearing loss for VA purposes. Therefore, the Board places little probative weight on this opinion. The Veteran had another examination for his hearing loss in December 2013. The examiner reviewed the Veteran's file and reported the Veteran did not have hearing loss for VA purposes. While noting other hearing loss was present, the examiner opined it was not at least as likely as not due to his time in service. The examiner compared the Veteran's entrance and separation examinations and noted there was no significant threshold shift in hearing and the Veteran's STRs did not indicate any complaints of hearing problems while in service. The Veteran had another examination for his bilateral hearing loss in June 2017. The Veteran's puretone thresholds indicated the Veteran had hearing loss for VA purposes in his left ear but not in his right ear. This examiner opined the Veteran's hearing loss was incurred in and due to his time in service, explaining the Veteran worked in service in vehicle repair and that his MOS concedes a high probability to hazardous noise exposure and that he used hearing protection recreational activities. In June 2017, an addendum was submitted. The examiner noted hearing loss was present on the tracing audiogram at enlistment and that the Veteran's hearing did improve when compared to his separation examination. However, the examiner noted the separation examination did not include thresholds for 3000 and 6000 Hz, which are frequencies where noise induced hearing loss is typically seen. Therefore, the examiner concluded, that hearing loss incurred in service could not be determined. The Veteran's MOS concedes high probability to hazardous noise exposure and therefore, it was at least as likely as not that he incurred a significant threshold shift while in service. In June 2019, the Veteran submitted a letter from an audiologist. The Veteran reported noise exposure while in service, numerous temporary threshold shifts, but that a hearing test provided by VA from January 1973 showed hearing within clinically normal limits. The examiner said puretone thresholds showed hearing within normal limits to 2000 Hz sloping to "mild to moderately severe" hearing loss bilaterally, which was consistent with previous testing. The examiner reported it was well-established in the medical literature that excessive and recurrent exposure to noise can cause hearing loss. The examiner reported the Veteran's military noise exposure "was likely a contributing factor" to his hearing loss. However, the examiner also stated that "due to lack of sufficient evidence, it is impossible to determine that this was the only factor involved. The hearing loss is also likely related to the general aging process and concurrent degradation of hearing acuity observed in most individuals as we age." An accompanying audiogram showed the Veteran appeared to have hearing loss for VA purposes in both ears at 4000 Hz. However, the Board places little probative weight on this opinion as the statement that noise exposure while in service "was likely a contributing factor" does not arise to the level of certainty required for a finding of service connection. The Veteran had an examination for his hearing loss in August 2019. The examiner reviewed the Veteran's file and considered the Veteran's statements about his noise exposure while in service. The Veteran reported exposure to heavy equipment maintenance, handling weaponry, working and driving heavy equipment, and that he was not given hearing protection. The Veteran reported he worked for over 20 years for the USPS driving a truck with no hearing protection, but that he used hearing protection during recreational activities. The examiner reported the Veteran's puretone levels showed hearing loss for VA purposes and that speech discrimination scores could not be tested. The examiner explained that the puretone testing results were not valid for rating purposes. The examiner explained that the Veteran inquired at length about testing procedures prior to the examination and was then reinstructed on the proper testing techniques during each step of the testing process. However, despite reinstruction and change of testing technique, the Veteran "omitted initial phoneme of each test word during speech testing. This did not match his conversation overt behavior and is unlikely based on the degree of his hearing loss that he would miss so many sounds, particularly as he was able to make them out if they were in the middle or at the end of other words. As such, word discrimination scores were not recorded." However, the examiner was still able to render an opinion. The examiner opined it was less likely than not the Veteran's hearing loss was incurred in or due to his time in service. The examiner noted in service, the Veteran's hearing was tested several times with normal results and that there was no evidence he experienced acoustic trauma related to hazardous noise. The examiner also cited to medical literature that delayed onset hearing loss as a direct result of excessive noise was highly unlikely. Therefore, "any hearing loss related to military service would have been present at the time of discharge and noted on his separation physical, which was not the case." The examiner also noted the Veteran had been tested several times in the past and that these examiners had reached the same conclusion that the Veteran's hearing loss was not related to his time in service. The Veteran's treatment records indicate he has been seen for his claim of hearing loss. In January 2010, the Veteran complained of slow progressive-type hearing problems secondary to his time in service. This examiner noted the Veteran's puretone thresholds showed hearing within normal limits through 2000 Hz, sloping to moderate hearing loss with 100 percent speech discrimination. The examiner specifically noted the results were not adequate for adjudication purposes. The Veteran has been seen for his hearing as noted in several other treatment records but those records do not show that he had bilateral hearing loss for VA purposes that was incurred in or due to his time in service. The Board has considered the one reading in October 1972 showing the Veteran had hearing loss in his left ear prior to service. However, the Board also notes that the Veteran's subsequent audiograms consistently have shown no hearing loss for VA purposes in his left ear. Additionally, the examiner upon entrance did not make a finding the Veteran had left ear hearing loss prior to his time in service and therefore, the Board finds the presumption of soundness applies and the Board declines to find the Veteran had left ear hearing loss diagnosed prior to service. Finally, with several in-service audiograms and his separation audiogram showing no hearing loss for VA purposes, even if the Veteran was to have a diagnosis of left ear hearing loss, the Board finds that there is no evidence of aggravation of this condition while in service as subsequent audiograms indicated an actual improvement in hearing in his left ear. The Board has considered all evidence of records, including the Veteran's statements and the conflicting evidence regarding whether he has hearing loss for VA purposes and if so, whether it was due to his time in service. Overall, the Board finds the amount of evidence indicating the Veteran does not have hearing loss for VA purposes to outweigh the few mentions of possible bilateral or left ear hearing loss. Even if the Board were to assume the Veteran did have hearing loss for VA purposes, the Board finds the overwhelming amount of evidence, including the most probative examinations discussed above, does not indicate it was due to his time in service. The most probative examinations, which indicate the Veteran's hearing loss was less likely than not incurred in or due to his time in service, reviewed the Veteran's record, provided puretone thresholds, offered opinions, and explanations for such opinions. These opinions considered the delayed worsening of the Veteran's hearing and also reviewed not only his medical records, but also his service records. The Board has considered the examinations that indicate a positive relationship between his hearing loss and time in service, but finds them outweighed by the numerous and more complete examinations that state the contrary. Thus, the Board has considered the evidence in the Veteran's favor, but finds that it is outweighed by the evidence against his claim. Regarding the claims above, the Board acknowledges and has considered the Veteran's statements that his conditions bother him and that he believes his hearing loss is related to the noise he was exposed to while in service and that he should have an earlier effective date for the grant of service connection for his tinnitus. The Board does not doubt the Veteran's report that he was exposed to loud noise in service, in part due to loud artillery and machinery. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as the nature and etiology of his complex medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, while the Board has carefully considered the Veteran's statements about his symptoms and what happened to him while in service, these statements must be weighed against the objective evidence of record. The Board finds that the objective evidence of record, which includes the examinations discussed above, are most probative in determining the etiology and severity of the Veteran's conditions. The Board has weighed the relative probative weight of the examinations of record and found that some of the objective evidence is more probative than other documents of record. It is important for the Veteran to understand that the most probative medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his hearing loss and tinnitus are the result of service, providing a highly clear basis for the opinion. (Continued on the next page) Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Except as otherwise noted, because the evidence is not in approximate balance or nearly equal, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.