HEARING LOSS

Summary

The veteran, who served from October 1966 to October 1968, appeals the denial of service connection for bilateral hearing loss, the denial of an earlier effective date for traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) at a 70 percent rating, and the dismissal of an appeal for an earlier effective date for hepatitis C. The Board denied revision of the May 1969 decision denying hearing loss, finding no clear and unmistakable error (CUE). The Board noted that while the veteran had a perforated left ear and claimed hearing loss due to a blast injury in December 1968, his entrance examination showed normal hearing, and subsequent audiometric tests from 1993 to 2019 consistently showed normal hearing. The Board concluded that the May 1969 decision was not CUE because the initial claims file lacked sufficient audiometric data, and the veteran failed to attend a scheduled VA examination. Subsequent evidence also did not establish a current hearing loss disability for VA compensation purposes. The Board denied an earlier effective date for TBI and PTSD, stating that the evidence did not indicate worsening during the relevant period and that the earliest available effective date was the claim filing date. The appeal for an earlier effective date for hepatitis C was dismissed as moot because no compensable rating had been assigned. The Board remanded claims for initial compensable ratings for TBI and hepatitis C, and for an increased rating for PTSD, to obtain updated VA examinations to assess current disability severity.

Rationale

May 1969 decision denying hearing loss was not CUE; Lack of audiometric data in initial claims file; Veteran failed to attend scheduled VA examination; Subsequent audiometric tests consistently showed normal hearing

Full Decision Text

Citation Nr: 24028839
Decision Date: 08/13/24	Archive Date: 08/13/24

DOCKET NO. 20-11 234
DATE: August 13, 2024

ORDER

Revision of the May 1969 decision that denied entitlement to service connection for bilateral hearing loss disability is not warranted.

Entitlement to an effective date earlier than January 13, 2016, for the award of service connection for a traumatic brain injury (TBI) is denied.

Entitlement to an effective date earlier than January 13, 2016, for the award of a 70 percent disability rating for post-traumatic stress disorder (PTSD) is denied.

The appeal for an effective date earlier than January 13, 2016, for a noncompensable disability rating for hepatitis C with laceration, liver, shell fragment wound (hepatitis C disability) is dismissed.

REMANDED

Entitlement to an initial compensable disability rating for TBI is remanded.

Entitlement to an increased disability rating higher than 70 percent for PTSD is remanded.

Entitlement to a compensable disability rating for hepatitis C disability is remanded.

FINDINGS OF FACT

1. On December 8, 1968, the Veteran was in close proximity to a combat related blast in Vietnam; several injuries resulted from the event, to include a perforated left ear. 

2. The Veteran was afforded the opportunity to participate in an April 1969 VA examination for hearing loss disability; he did not show for the VA examination. 

3. On May 19, 1969, the Agency of Original Jurisdiction (AOJ) issued a rating decision that denied entitlement to service connection for bilateral hearing loss disability.

4. In the May 1969 decision, the AOJ considered the law in effect at the time and weighed the service and post-service evidence in the claims file; there was no undebatable clear and unmistakable error (CUE) in applying the applicable statutory and regulatory provisions existing at the time or that the facts as they were then known were not considered such that the outcome would have been manifestly different without debate.

5. The Veteran has had at least seven audiometric tests since October 1968, to include February 1993, March 2000, March 2008, March 2011, January 2015, and January 2019; they all resulted show normal hearing.

6. The evidence of record persuasively weighs against finding the Veteran has had a hearing loss disability for VA compensation purposes at any time during or approximate to the pendency of the claim.

7. On January 13, 2016, VA received the Veteran's service connection claim for a TBI (initially claimed as polytrauma). 

8. For the period from January 13, 2015, to January 13, 2016, the evidence does not indicate a date that the Veteran's PTSD worsened to the extent a 70 percent disability rating is warranted. 

9. The claim for an earlier effective date for the grant of a noncompensable disability rating for hepatitis C disability is moot because no increased rating was assigned for the disability during the period covered by this claim.

CONCLUSIONS OF LAW

1. The May 19, 1969, decision denying entitlement to service connection for bilateral hearing loss disability is final. 

2. The May 19, 1969, decision by the AOJ denying entitlement to service connection for bilateral hearing loss disability was not clearly and unmistakably erroneous. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.110.

3. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for an effective date earlier than January 13, 2016, for the award of service connection for a TBI are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.157, 3.400. Diagnostic Code (DC) 8045.

5. The criteria for an effective date earlier than January 13, 2016, for the award of a 70 percent rating for PTSD are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.157, 3.400.
 for the award of service connection for a TBI are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.157, 3.400. Diagnostic Code (DC) 8045.

5. The criteria for an effective date earlier than January 13, 2016, for the award of a 70 percent rating for PTSD are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.157, 3.400. DC 9411. 

6. The criteria for dismissing a claim for an earlier effective date for the assignment of noncompensable rating are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104(c). DC 7311-7345.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1966 to October 1968. These matters come to the Board of Veterans' Appeals (Board) from an April 2016 rating decision issued by the AOJ. In September 2022, a Board hearing was conducted. The hearing transcript has been associated with the Veteran's file.

1. Revision of the May 1969 rating decision that denied entitlement to service connection for bilateral hearing loss disability is not warranted.

The Veteran asserts that the pre-May 1969 claims file included undebatable evidence that a bilateral hearing loss disability for VA compensation purposes emerged by that date. He contends the AOJ should have awarded service connection; instead, it denied his hearing loss disability claim. For the reasons discussed below, the Board concludes revision of the May 1969 decision is not warranted because the conclusion was not clearly and unmistakably erroneous. 

VA regulations provide a specific definition for what constitutes a hearing loss disability for VA compensation purposes. Under 38 C.F.R. § 3.385, hearing loss is considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. So, it is possible for a Veteran to have a hearing impairment that does not rise to a level to become a disability for entitlement to VA compensation. Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007).  

Previous decisions that are final and binding, to include decisions of service connection, will be accepted as correct. Once the decision becomes final, it may only be revised by a showing of CUE. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. 38 C.F.R. §§ 3.104, 3.105.

To establish CUE, the claimant must show: (1) either the correct facts known at the time of the decision were not before the adjudicator, or the law as it existed at the time of the decision was incorrectly applied, the claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated; and (2) based on the record and law that existed at the time, the error was 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. Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc). Only evidence that was in the claims file at the time of the challenged decision may be considered. Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (holding that "evidence" in 38 U.S.C. § 5109A(a) is limited to evidence that was of record at the time of the challenged AOJ decision).

Beginning with the Veteran's service, his entrance examination does not indicate the Veteran had hearing loss at entrance. The audiometric examination at entrance does not show a hearing loss disability was present
 Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc). Only evidence that was in the claims file at the time of the challenged decision may be considered. Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (holding that "evidence" in 38 U.S.C. § 5109A(a) is limited to evidence that was of record at the time of the challenged AOJ decision).

Beginning with the Veteran's service, his entrance examination does not indicate the Veteran had hearing loss at entrance. The audiometric examination at entrance does not show a hearing loss disability was present, or that he already had some hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss). The audiometric puretone threshold test (in decibels) was:

Hertz (HZ)	500	1000	2000	3000	4000	Average Hz

Right Ear	0(15)	0(10)	0(10)	0(10)	0(5)	(8.75)

Left Ear	5(20)	0(10)	0(10)	0(10)	0(5)	(8.75)

(The Board notes this audiometric test was conducted according to Acoustic Society of America (ASA) standards and not the currently used International Standard Organization (ISO) standard. The numbers in parenthesis represent the conversion of the audiometric test results from ASA to ISO units). See June 1966 Report of Medical Examination at 2).  

The Veteran has not asserted he started to observe hearing problems at any time before serving in Vietnam. He links his hearing loss disability to loud noise exposure and getting injured by an explosive blast in December 1968.  On December 8, 1968, the Veteran was in close proximity to an explosion that resulted in, among other injuries, a perforated left ear. The evidence supports his assertions. See June 1966 Report of Medical Examination (hearing test showed normal hearing; February 1968 Service Treatment Record (STR) (noting blast resulted in perforated left ear, and reduced hearing); April 1968 STR (noting Veteran was treated for multiple fragment wounds resulted from a December 8, 1968, blast). He separated from service on October 30, 1968. 

VA received the Veteran's initial bilateral hearing loss disability service connection claim the same day he left service (October 30, 1968). By this date, the claims file did not include a post-December 1968-blast-inury audiometric test. The AOJ scheduled the Veteran for an April 1969 VA examination; he did not show for the examination. See March 1969 Rating Decision (deferring the decision to award service connection for a hearing loss disability to get a VA examination). In May 1969, the AOJ issued a decision denying the Veteran's hearing loss disability claim because he did not show for the VA examination. See Notification Letter. The Veteran asserts the evidence in that existed in the claims file was sufficient to grant the claim. See September 2022 Board Hearing Transcript at 10-11. He now adds that he had trouble hearing out of the left ear since the December 1968 blast injury. Id. 

The record reflects the Veteran has consistently expressed he has bilateral hearing loss disability. In turn, VA has conducted several audiometric tests; the record shows at least seven tests were conducted since February 1993. Moreover, they consistently show the Veteran has normal hearing. See VA Medical Center (VAMC) Records dated February 1993 (results showed normal hearing), March 2000 (results showed normal hearing); February 2002 (results showed normal hearing); March 2008 (results showed normal hearing); March 2011 (results showed normal hearing); January 2015 (results showed normal hearing); and January 2019 (results showed normal hearing). During the period from February 1993, the Veteran has sought service connection for bilateral hearing loss disability multiple time; each claim was denied because the evidence does not establish that he has a bilateral hearing loss disability for VA compensation purposes. See July 1993 Rating Decision, November 1993 Supplemental Statement of the Case (SSOC), July 1998 Board Decision.

After reviewing the record, the Board concludes the May 1969 decision that denied service connection for bilateral hearing loss disability was not clearly and unmistakably erroneous. The evidence that existed in the pre-May 1969 claims file did not include data-that is, audi
 hearing); January 2015 (results showed normal hearing); and January 2019 (results showed normal hearing). During the period from February 1993, the Veteran has sought service connection for bilateral hearing loss disability multiple time; each claim was denied because the evidence does not establish that he has a bilateral hearing loss disability for VA compensation purposes. See July 1993 Rating Decision, November 1993 Supplemental Statement of the Case (SSOC), July 1998 Board Decision.

After reviewing the record, the Board concludes the May 1969 decision that denied service connection for bilateral hearing loss disability was not clearly and unmistakably erroneous. The evidence that existed in the pre-May 1969 claims file did not include data-that is, audiometric testing-that would have informed an adjudicator whether the Veteran's hearing problems met the criteria for a hearing loss disability for VA compensation purposes. It is apparent to the Board that the AOJ did not completely develop the claim by the date it denied the claim (May 1969). 

The Board observes the AOJ denied the Veteran's bilateral hearing loss disability claim in May 1969 before fully developing the claim, but it properly did so. According to the VA regulations at the time, a claim was discontinued if the Veteran failed to show for a VA examination. 38 C.F.R. § 3.655. Because the AOJ did not have all the information it needed by May 19, 169, it had no way of deciding if an award of service connection was warranted on a direct basis, or by way of having a diagnosed chronic disability with continuous symptoms since service. 

The evidence in the record to date leaves no doubt that an award of service connection for bilateral hearing loss disability would have been warranted, if the Veteran had shown for the April 1969 VA examination. All the audiometric tests conducted to date show the Veteran has not had a hearing loss disability for VA compensation purposes since he initially sought VA compensation benefits (October 1968). Accordingly, the Board concludes that the May 1969 decision was not clearly and unmistakably erroneous, and the application for revision based on CUE is denied.

To the extent the Veteran contended any subsequent decision that denied entitlement to service connection for a hearing loss disability was clearly and unmistakably erroneous, the (seven) audiometric tests conducted since February 1993 leave no doubt that was not the case. While the Veteran may observe some hearing problems, the evidence leaves no doubt that he does not have-nor has had-a hearing loss disability for VA compensation purposes. Palczewski, 21 Vet. App. at 181 (2007) ("Without a current disability, of course, there can be no service connection and, thus, no disability compensation").  Because more recent evidence shows the Veteran does not currently have a hearing loss disability for VA compensation purposes, the Board sees no reason to remand the claim to evaluate an existing hearing loss disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (stating that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran should be avoided).

2. Entitlement to an effective date earlier than January 13, 2016, for the award of service connection for a TBI. 

The currently assigned effective date (January 13, 2016) is that date of the Veteran's initial service connection claim for a TBI. He contends that he should be awarded an effective date before January 2016. See September 2022 Board Hearing Transcript at 9 (asserting he had a TBI as far back as at least 1993). The Board concludes an effective date before January 2016 is not available at this time. 

Generally, the effective date of an award based on an initial claim is assigned based on the facts found but will not be earlier than the date the VA received the entitlement claim. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless there is some exception (and there is not one here), an effective date cannot be awarded before the date of the filing of a claim. Id. So, identification of the earliest nonfinal claim for benefits is important in determining the appropriate effective date. 

After reviewing the record, the Board concludes an effective date earlier than January 13, 2016, for the award of service connection for a TBI is not warranted. That is the date VA became aware the Veteran desired the benefit. Unless there is some exception (and there is not one here), an effective date cannot be awarded before the date of the filing of a claim. 38 U.S.C. § 5110(a); 38 C.F.R.
.400. Unless there is some exception (and there is not one here), an effective date cannot be awarded before the date of the filing of a claim. Id. So, identification of the earliest nonfinal claim for benefits is important in determining the appropriate effective date. 

After reviewing the record, the Board concludes an effective date earlier than January 13, 2016, for the award of service connection for a TBI is not warranted. That is the date VA became aware the Veteran desired the benefit. Unless there is some exception (and there is not one here), an effective date cannot be awarded before the date of the filing of a claim. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

The Board observes the Veteran has expressed he is entitled to an effective date as far back as 1993. See September 2022 Board Hearing Transcript at 9. In this case, the Board cannot assign an effective before the date of his initial TBI claim (January 13, 2016). If he believes the effective date should be earlier than January 2016, he is encouraged to consult with his representative and seek revision of the relevant decision(s). But the Board cannot adjudicate a CUE claim in the first instance.

3. Entitlement to an effective date earlier than January 13, 2016, for the award of a 70 percent disability rating for PTSD. 

4. The appeal for an effective date earlier than January 13, 2016, for a noncompensable disability rating for hepatitis C disability is dismissed.

The currently assigned effective dates for the current ratings for PTSD, and hepatitis C disability are based on the date VA received his non-initial increased rating claim. He contends the effective dates for those claims should be assigned before the one-year lookback period (beginning January 13, 2015). See September 2022 Board Hearing Transcript at 8, 9-10 (expressing the effective date for PTSD and hepatitis C disability should go as far back as at least 2000). For the reasons discussed below, the Board concludes he has already been awarded the earliest effective date available at this time. 

Generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. VA regulations also allow for an earlier effective date up to one-year prior to the date of the increased rating claim, if the disability worsened during the one-year period before the Veteran filed the claim. 38 C.F.R. § 3.400(o)(2). This is dubbed the "one year look back" provision; it is essentially a one-year grace period for a Veteran to file an increased rating claim following some incident of worsening. In order to benefit from this provision, the worsening must be factually ascertainable based on the available evidence. 

The one-year period before VA received the Veteran's (January 13, 2016) PTSD, and hepatitis C disability increased rating claim begins January 13, 2015. He did not submit evidence during the period from January 2015 to January 2016 that indicates his disabilities worsened during that period. Further, the evidence generated by VA during this period does not describe the Veteran's disabilities in a way that helps the Board evaluate the disabilities according to the respective rating criteria (here, DCs 9411, 7311, and 7345). Finally, he has not submitted more recent evidence that speaks to the period between January 2015 and January 2016. The Veteran's spouse that states has submitted a statement relating that she observes the Veteran display moods swings, but she indicates she has been observing them since they married (December 2009). See April 2017 Statement.

With regards to the Veteran's hepatitis C disability, the AOJ continued the Veteran's noncompensable rating for hepatitis C disability in the April 2016 rating decision on appeal. See Rating Decision at 8.; for hepatitis C, sometime in 2000. See September 2022 Board Hearing Transcript at 8-9.

A.	Entitlement to an effective date before January 13, 2016, for a noncompensable disability rating for hepatitis C disability.

To start, the Veteran cannot appeal for an earlier effective date for a (compensable) disability rating that has yet to be assigned, which is the case here. To date, the Veteran has not been awarded a compensable rating under DCs 7311, or 7311-7345, at any time from October 1968. The Board concludes the issue is moot and must be dismissed. 38 U.S.C. § 7105(d
.; for hepatitis C, sometime in 2000. See September 2022 Board Hearing Transcript at 8-9.

A.	Entitlement to an effective date before January 13, 2016, for a noncompensable disability rating for hepatitis C disability.

To start, the Veteran cannot appeal for an earlier effective date for a (compensable) disability rating that has yet to be assigned, which is the case here. To date, the Veteran has not been awarded a compensable rating under DCs 7311, or 7311-7345, at any time from October 1968. The Board concludes the issue is moot and must be dismissed. 38 U.S.C. § 7105(d).

A.	Entitlement to an effective date before January 13, 2016, for an increased disability rating of 70 percent for PTSD.

After reviewing the record, the Board concludes an effective date before January 2016 for a 70 percent disability rating is not warranted. The evidence that speaks to the period from January 2015 to January 2016 does not indicate the Veteran's disability picture worsened during that period. He had stopped working long before 2015; so, events that indicate an increase in symptoms affecting occupational impairment were not present. For example, the loss of employment. Further, the Veteran did not discuss his disability picture in a way that indicates it worsened between January 2015 and January 2016. 

The evidence does not persuade the Board the Veteran's disability picture worsened during the one-year look back period. Because the Board cannot factually ascertain if, or when, the Veteran's PTSD-disability picture worsened between January 2015 and January 2016, an effective date prior to the date of claim is not warranted. Accordingly, the Board must deny the claim for an effective date. Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir. 2010) (holding the effective date may be earlier than the date of claim if there is a factually ascertainable increase within the one year prior to the claim).

The Board observes the Veteran has expressed that he is entitled to an effective date before the one-year look back period. But the Board cannot assign an effective date before January 13, 2015. If the Veteran believes a particular disability rating for PTSD is warranted before that date, he is encouraged to consult with his representative and seek revision of the relevant decision(s). But the Board cannot adjudicate a CUE claim in the first instance.

REASONS FOR REMAND

1. Entitlement to an initial compensable disability rating for TBI.

2. Entitlement to a compensable disability rating for hepatitis C disability.

3. Entitlement to a higher than 70 percent disability rating for PTSD.

Although the Board regrets the delay, the above listed claims must be remanded for new VA examinations in order to capture the current severity of the disabilities. The Veteran has expressed his disabilities have worsened since his last (April 2016) VA examinations. See September 2022 Board Hearing Transcript at 5-6. Accordingly, the Board must remand the claims for new VA examinations. Glover v. West, 185 F.3d 1328, 1332-33 (Fed. Cir. 1999) ("Generally, reexaminations will be required if...evidence indicates there has been a material change in a disability or that the current rating may be incorrect."). 

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected hepatitis C disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service connected TBI disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 

3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 

The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone.

 

R.R. Watkins

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Dean, Michael S.

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