Citation Nr: 1736596	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  16-07 201	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a compensable rating for hearing loss prior to May 28, 2014. 

2.  Entitlement to service connection for leukoplakia, including as secondary to exposure to herbicides.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission 


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Shana Z. Siesser, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2016). 38 U.S.C.A. § 7107 (a)(2) (West 2014).

The Veteran served on active duty from October 1953 to August 1955, May 1961 to September 1982, including service in Vietnam. He has been awarded a Combat Infantryman's Badge among his awards and decorations.

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

A Board hearing was conducted in October 2016. A transcript of this hearing is contained within the electronic claims file.

This matter was previously before the Board in March 2017, at which time it was remanded for additional development.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record.

The issue of entitlement to service connection to leukoplakia is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The RO denied entitlement to an increased rating for hearing loss of the left ear in August 2010; the Veteran was notified of the denial and did not perfect an appeal. Service connection for right ear hearing loss was denied in September 2010.  There was notice. Those decisions are final.  

2.  A claim for an increased rating for hearing loss was filed in May 2014. By rating action of April 2015, an increased rating of 10 percent was assigned for bilateral hearing loss, effective the date of claim.  This rating effectively granted service connection for right ear hearing loss.

3.  No communication or evidence was received since the August 2010 final denial and prior to May 28, 2014 which could be interpreted as an informal or formal claim to reevaluate the Veteran's hearing loss.


CONCLUSION OF LAW

The criteria for a compensable rating for hearing loss prior to May 28, 2014, have not been met. 38 U.S.C.A. §§ 5110, 7105 (West 2014); 38 C.F.R. §§ 3.105, 3.400 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103 (a) (West 2014) have been met for the claim of entitlement to an earlier effective date. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

VA has also fulfilled its duty to assist the Veteran to substantiate the claim as warranted by law. There is no evidence that additional development is in order before the claim for an earlier effective date may be addressed. For the reasons discussed below, the Board finds that the evidence of record is adequate to adjudicate the claim decided herein.

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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).

Procedural history

The Veteran was initially awarded service connection for left ear hearing loss and assigned a noncompensable rating in December 1982.  The Veteran was notified of this decision and did not appeal within one year.  In December 2009, the Veteran filed a claim for an increased rating for his hearing loss.  This claim was denied in an August 2010 rating decision.  In a September 2010 rating decision, the RO denied service connection for hearing loss of the right ear.  The Veteran was notified of these decisions and did not appeal. 

The present claim stems from a statement filed by the Veteran in May 2014.  In an April 2015 rating decision, the RO granted the Veteran's claim and assigned a 10 percent rating for bilateral hearing loss, effective May 28, 2014, the date of claim.  

The Board notes that although the RO assigned an increased 10 percent rating for bilateral hearing loss in the April 2015 rating decision.  While there was no formal action undertaken, this rating effectively granted service connection for right ear hearing loss.  There was an examination conducted that demonstrated hearing loss in both ears and offered an etiological opinion.  Apparently based on this new and material evidence service connection for bilateral hearing loss was granted.

In a June 2015 notice of disagreement, the Veteran indicated that he disagreed with the effective date of his 10 percent rating and that he is entitled to a combined rating of 70 percent for his service-connected disorders.

The RO issued a statement of the case in August 2016, in which they concluded that the effective date of the grant of the 10 percent rating was May, 28, 2014 and that an earlier date for an increased rating is appropriate when the evidence shows an increase in disability within one year of the date of claim.  The RO also concluded that the Veteran was not entitled to a rating in excess of 10 percent for his hearing loss as he did not submit any medical evidence showing that his hearing loss worsened since the date of his VA examination in April 2015.  

The Veteran filed a substantive appeal (VA Form 9) in February 2016.  He stated that his hearing loss was more severe than the 10 percent evaluation considers and that it does not reflect the effect of his hearing loss on his daily activities.  (This matter was addressed in the prior Board decision.)

In March 2017, the Board denied the Veteran's claim for an increased rating from May 28, 2014 and simultaneously remanded his claim for an increased rating prior to May 28, 2014 for clarification of the issue by the Veteran and RO.  The Board noted that prior to May 28, 2014; the Veteran was only in receipt of service connection for left ear hearing loss.  However, effective May 28, 2014, the RO granted an increased rating for bilateral hearing loss.  The RO was directed to review the assignment of the 10 percent rating prior to May 28, 2014, including entitlement to a rating for bilateral hearing loss prior to that time. 

In a June 2017 supplemental statement of the case (SSOC), the RO denied entitlement to a compensable rating for hearing loss prior to May 28, 2014, finding that the evidence does not support such a finding.  This SSOC also denied the Veteran's claim of service connection for leukoplakia. 

The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award 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 C.F.R. § 3.400. Claims for increased benefits may be awarded at the earliest date in which it is factually ascertainable that an increase in disability had occurred, if the claim is received within 1 year of the date such an increase occurred. Otherwise, the increase is effective the date of receipt of claim. 38 C.F.R. § 3.400 (o)(2).

The Veteran filed his claim on May 28, 2014. The Veteran was afforded a VA examination in April 2015, and in an April 2015 rating decision, was assigned an increased evaluation of 10 percent, effective May 28, 2014, the date of claim.  As noted, this was apparently based in part on the findings of this examination, and new and material evidence received therein.
 
Based on review of the evidence discussed above, the Board finds no evidence which indicates that an effective date any earlier than May 28, 2014 may be granted for the assignment of a compensable rating for hearing loss.

The general rule governing effective dates is that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is later. Here, the Veteran submitted the claim for an increased rating for his service-connected hearing loss on May 28, 2014. VA regulations do allow for the receipt of clinical reports of examination or hospitalization to serve as informal claims for increase where the claim is for an already service-connected condition. 38 C.F.R. § 3.157. However, the Veteran's VA treatment records show absolutely no complaints or treatment related to the Veteran's hearing at any time between August 2010 and May 2014. The Board cannot, therefore, find that there are any clinical reports that could be accepted as an informal claim of entitlement to a compensable rating for hearing loss.  Moreover, new and material evidence provisions concerning effective dates would not result in any earlier possible date.

The Board also is unable to assign an effective any earlier than May 28, 2014 under 38 C.F.R. § 3.400 (o)(2), which allows for an increased benefit to be awarded at the earliest date in which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year of such date. 38 C.F.R. § 3.400 (o)(2). The Veteran has not submitted any medical records pertaining to the one year period preceding May 28, 2014.  Therefore 38 C.F.R. § 3.400 (o)(2) does not apply.

In sum, there is no document or medical record that might be construed, even in the broadest sense, as a claim for an increased rating for hearing loss residuals prior to May 28, 2014, nor is it factually ascertainable that an increase in disability occurred during the one year period prior to that date. Therefore, there is no basis for granting an earlier effective date.


ORDER

Entitlement to a compensable rating for hearing loss prior to May 28, 2014 is denied.


REMAND

Remand is necessary to obtain a clarifying opinion regarding whether the Veteran's leukoplakia was a result of his exposure to herbicides in service.

This matter was remanded for a VA examination and opinion in March 2017.  In April 2017, a VA examiner opined that "it is not as least as like as not that the carcinoma of the tongue was related to herbicide exposure during Vietnam service."  However, the examiner did not provide a rationale to support this opinion.  Therefore, remand is necessary for an addendum opinion.

Accordingly, the case is REMANDED for the following action:

1.  Return the claims file to the April 2017 VA examiner.  If that examiner is unavailable, a suitable replacement must be provided. The Veteran's file should be made available to the examiner for review, and the examiner should acknowledge such review in the examination report.  If a response to the following cannot be provided without additional examination, such examination should be scheduled.  Then all necessary tests and studies should be performed.

The examiner is requested to answer the following: 

Is the Veteran's leukoplakia a result of his exposure to herbicides in service or the result of any other incident of service?

The examiner is reminded that even if leukoplakia is not presumptively service-connected based on herbicide exposure under 38 C.F.R. § 3.309(e), service connected may still be warranted if the evidence supports a relationship.

The examiner is requested to address the October 2016 opinion by R.A., M.D., stating that exposure to Agent Orange is "a possible and probably cause of his tongue cancer."

A complete rationale must be provided for all opinions.  
 
2. Thereafter, readjudicate the issue on appeal and if the benefits sought on appeal remain denied, issue an appropriate supplemental statement of the case.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs

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