12-01 629
12-01 629
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty Oct 1978–Jun 1980 and appealed VA regional office decisions from Mar 2014, Nov 2016, and May 2017.
- Veteran is service‑connected for tinnitus (assigned 10% under DC 6260) and for bilateral hearing loss (service‑connected, claim filed May 27, 2010).
- VA granted service connection for tinnitus and hearing loss effective May 27, 2010; Veteran seeks earlier effective dates for both.
- Veteran appealed reduction/ratings for PTSD; he filed an April 2014 NOD but no SOC was issued on the increased‑rating portion of the PTSD claim.
- Veteran asserted his hearing worsened since the last VA audiology exam (Feb 2011) and seeks increased rating for hearing loss; VA ordered a new exam on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Increased rating for tinnitus (>10%) | Veteran seeks a higher rating for tinnitus based on symptom severity | VA points out DC 6260 caps tinnitus at a single 10% evaluation; no higher schedular rating exists | Denied — 10% is the maximum under DC 6260 |
| 2. Earlier effective date for tinnitus (prior to May 27, 2010) | Seeks an earlier effective date (no specific earlier date argued) | No written communication before May 27, 2010 showing intent to claim tinnitus; first claim received May 27, 2010 | Denied — no informal/formal claim for tinnitus before May 27, 2010 |
| 3. Earlier effective date for bilateral hearing loss (prior to May 27, 2010) | Seeks earlier effective date | No written communication before May 27, 2010 identifying hearing loss claim; earlier filings concerned extremity symptoms only | Denied — effective date remains May 27, 2010 |
| 4. Increased rating for PTSD, increased rating for hearing loss, TDIU prior to Feb 12, 2016, and earlier effective date for social anxiety with MDD | Veteran contends PTSD increase and related claims (social anxiety, TDIU) were not properly adjudicated; hearing worsened since 2011 | VA did not adjudicate increased PTSD after NOD and needs further development for hearing | Remanded — AOJ must issue SOC for PTSD NOD, obtain a new audiology exam, and readjudicate PTSD, hearing loss increase, TDIU, and social anxiety/effective date (claims inextricably intertwined) |
Key Cases Cited
- Manlincon v. West, 12 Vet. App. 238 (1999) (SOC required after NOD to continue appellate process)
- Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (no new exam required where max schedular evaluation already assigned)
- Smith v. Nicholson, 451 F.3d 1344 (2006) (single evaluation for recurrent tinnitus under DC 6260)
- Copeland v. McDonald, 27 Vet. App. 333 (2015) (prohibits rating by analogy when an applicable diagnostic code exists)
- Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (requirements for informal claim: written communication, intent, and identification of benefits sought)
- Brannon v. West, 12 Vet. App. 32 (1998) (medical evidence alone does not establish intent to file a claim)
- Ortiz v. Principi, 274 F.3d 1361 (2001) (clarifies application of benefit‑of‑the‑doubt when record preponderates against claimant)