Veteranclaims’s Blog

March 17, 2022

Single Judge Application; in Hall v. McDonough, this Court clarified the differences between claims processing rules and jurisdiction, holding that claims-processing rules “generally are binding when properly asserted and not forfeited.” 34 Vet.App. 329, 332 (2021). Here, the Board did not specifically invoke its authority to decline to hear Mr. Brown’s increased rating claim and did not provide him, or his representatives, with an opportunity to present arguments on the matter. See 38 C.F.R. § 20.104(c) (2021) (explaining that, if “the Board, on its own initiative, raises a question as to a potential jurisdictional defect, all parties to the proceeding and their representative(s), if any, will be given notice” and have an opportunity to present arguments on the matter); 38 C.F.R. § 20.4(b)(3) (2021) (establishing the applicability of § 20.104 to legacy appeals);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1674
WILLIAM D. BROWN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Army veteran William D. Brown, who is self-represented, appeals a 2019
Board decision that denied an earlier effective date for hearing loss and dismissed a serviceconnection
claim for PTSD. Mr. Brown was granted a 30% rating for PTSD from August 11, 2010,
and is currently in receipt of two separate 50% ratings—for PTSD and hearing loss—from
February 2019 forward. He argues that the Board erred in assigning an effective date for hearing
loss that corresponded to his most recent VA hearing examination, but no earlier. Further, Mr.
Brown argues that the Board should have addressed his request for an increased PTSD rating
because he raised the issue in a 2019 letter to the Board. For the reasons that follow, the Court
affirms the hearing loss matter but remands the PTSD matter.
Mr. Brown is representing himself so the Court will generously construe the arguments in
his informal brief. See Evans v. Shinseki, 25 Vet.App. 7, 14 (2011) (noting the Court’s policy of
liberally construing filings of self-represented appellants). After reviewing Mr. Brown’s filings,
the Court discerns four arguments. First, Mr. Brown argues that the Board erred in assigning an
effective date for hearing loss that corresponded to his February 8, 2019, exam because, he says,
his hearing loss was just as severe before the 2019 exam. Second, he argues that his 2010 hearing
loss examination was inadequate because the examiner did not administer a speech discrimination
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test. Third, Mr. Brown argues that the Board erred in dismissing his PTSD claim for lack of
jurisdiction. Finally, Mr. Brown asserts that the 2010 VA PTSD examination was inadequate
because the examiner did not comply with the instructions included in the request for a medical
exam. The Court will address the hearing loss matter first.
I. HEARING LOSS
Mr. Brown served on active duty from January 1966 until February 1972. In 2010, he filed
service-connection claims for bilateral hearing loss and PTSD. He underwent an audiological exam
later that year wherein the examiner found that his hearing loss was related to service. In 2011, the
regional office (RO) issued a rating decision granting service connection for hearing loss and
assigning a noncompensable (0%) rating effective August 11, 2010. In 2012 Mr. Brown submitted
an NOD disputing his 0% rating for hearing loss.
The Board issued a decision in 2018 remanding Mr. Brown’s claims and directing the RO
to secure a new audiological examination. In 2019, an audiological examiner found that Mr.
Brown’s hearing loss had worsened and, in a 2019 rating decision, VA assigned a 5 0% rating,
effective February 18, 2019.
Mr. Brown’s first argument, that he should have been awarded a compensable rating for
hearing loss before February 2019, fails as a matter of law.
The proper effective date for an initial claim for benefits “will be the date of receipt of the
claim or the date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (2021). Generally,
increased rating and initial rating claims have different effective date rules. See 38 C.F.R. §§ 3.400
and 3.400(o)(2). But they do have one thing in common: “[f]or both initial claims and increased
rating claims, the effective date can be no earlier than the date it was factually ascertainable” that
a veteran’s disability was diagnosed or worsened. Swain v. McDonald, 27 Vet.App. 219, 224 n.4
(2015). The effective date shouldn’t be “assigned mechanically” as of the date of an examination.
Id. at 224. The Board’s effective-date determinations are factual determinations that this Court
reviews for clear error, which requires the veteran to demonstrate in no uncertain terms that a
mistake has been made. See Bankhead v. Shulkin, 29 Vet.App. 10, 18 (2017). Put differently, “we
may overturn the Board’s finding only if there is no plausible basis in the record for the Board’s
decision.” Fears v. Wilkie, 31 Vet.App. 308, 314 (2019).
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VA relies on a pair of audiological tests—a speech discrimination test and a frequency
threshold test—to evaluate hearing impairment. 38 C.F.R. § 4.85 (2021). The veteran’s test results
are then plotted on a chart, table VII located in DC 6100, to determine the appropriate rating.
Ratings for hearing impairment are applied mechanically based upon audiological test results.
There are two audiological exams in the record—one from October 2010 and one from February

  1. The 2010 exam results did not warrant a compensable rating and the test results from 2019
    indicated that a 50% rating was appropriate. Mr. Brown argues that his hearing became gradually
    worse after 2010 but before 2019, such that his hearing impairment would have warranted a
    compensable rating before February 2019. However, in assessing hearing loss under VA’s rating
    schedule, VA may only rely on audiometry tests from a state-licensed audiologist. 38 C.F.R. §
    4.85(a); see Martinek v. Nicholson, 21 Vet.App. 447, 454 (2007). And, as discussed above, there
    was no additional audiological evidence in the record between the 2010 exam results and the
    February 2019 exam. Mr. Brown’s lay report of hearing loss before that time, by itself, is
    insufficient to determine when exactly his hearing loss rose to a compensable level. An effective
    date for an increased rating can only be assigned as of the earliest ascertainable date that the
    veteran met the rating criteria. The Board’s determination that Mr. Brown’s hearing impairment
    did not rise to a compensable level until the February 18, 2019, audio exam is supported by the
    record and is therefore affirmed.
    Mr. Brown also challenges the 2010 audiological exam, claiming that the examiner did not
    perform the required speech discrimination test during the exam. R. at 21. However, this
    contention is without merit. The record demonstrates that the 2010 examiner did perform a speech
    discrimination test, R. at 807, and the Board relayed Mr. Brown’s 2010 speech discrimination
    results in its 2019 decision, R. at 9.
    II. PTSD
    Mr. Brown filed a service-connection claim for PTSD alongside his 2010 claim for hearing
    loss and VA denied his claim in a 2011 rating decision. He filed an NOD and, on appeal, the Board
    remanded his claim and directed the RO to secure a new PTSD exam. The exam was completed
    on February 8, 2019, and the RO issued a rating decision in August 2019 granting service
    connection for PTSD and assigning a 30% rating from August 11, 2010 (the date of his initial
    claim) until February 8, 2019 (the date of his most recent VA examination) and a 50% rating
    4
    thereafter. Then, Mr. Brown sent two letters disputing his assigned ratings to VA within 60 days
    of the 2019 rating decision. His case was returned to the Board under 38 C.F.R. § 19.38 (explaining
    the proper procedure for returning previously remanded cases to the Board). Once the Board
    received Mr. Brown’s case, it adjudicated his hearing loss claim, but dismissed his serviceconnection
    claim for PTSD, finding that the issue was moot because the 2019 rating decision
    “favorably resolved this claim for service connection . . . in full.” R. at 7.
    Mr. Brown argues that the Board erred by failing to address the issue of a higher rating for
    his service-connected PTSD that, he says, was placed into appellate status by his September 2019
    and October 2019 letters. The Board did not address the veteran’s PTSD rating, finding that it
    “lack[ed] jurisdiction over the issue of entitlement to service connection for an acquired psychiatric
    disorder, to include PTSD, because the issue had been rendered moot” by the RO’s grant of service
    connection. R. at 7.
    Effective date and rating issues lie “downstream from the initial grant of benefits, and the
    initial NOD that appealed the denial of benefits cannot initiate appellate review of the downstream
    element.” Monk v. Wilkie, 32 Vet.App. 87, 98 (2019). Thus, as a matter of law, the Board was
    correct to suggest that Mr. Brown needed to submit a new NOD to initiate an appeal as to the
    effective-date and rating issues for his service-connected PTSD. However, as Mr. Brown points
    out, the Board overlooked two letters that he submitted expressing disagreement with the RO’s
    effective-date and rating assignments.
    The Secretary states that NODs must be submitted on a form prescribed by the Agency.
    See 38 C.F.R. § 19.21 (2019) (detailing filing requirements for NODs in the legacy appeals
    system). And although VA provided Mr. Brown with this information, he did not initiate an appeal
    using VA’s prescribed form—VA Form 10182. R. at 68. Thus, the Secretary argues, the Board was
    under no obligation to address the disagreements raised in Mr. Brown’s 2019 letters.
    But the Secretary’s argument overlooks a very important detail—the Board never assessed
    the veteran’s two letters or whether they could constitute valid NODs. See Deloach v. Shinseki,
    704 F.3d 1370, 1380 (Fed. Cir. 2013) (“[T]he evaluation and weighing of evidence are factual
    determinations committed to the discretion of the fact-finder—in this case, the Board.”). Congress
    empowered VA to determine what documents it would accept as NODs, and VA has clarified that
    it will only accept NODs submitted on the proper standardized form. See Veterans Justice Group,
    LLC v. Secretary of Veterans Affairs, 818 F.3d 1336 (Fed. Cir. 2016). But while the Board has the
    5
    authority to decline to hear claims that do not comply with a mandatory claims-processing rule,
    the Board did not decide whether to exercise that authority in this case.
    Moreover, in Hall v. McDonough, this Court clarified the differences between claims processing
    rules and jurisdiction, holding that claims-processing rules “generally are binding when
    properly asserted and not forfeited.” 34 Vet.App. 329, 332 (2021). Here, the Board did not
    specifically invoke its authority to decline to hear Mr. Brown’s increased rating claim and did not
    provide him, or his representatives, with an opportunity to present arguments on the matter. See
    38 C.F.R. § 20.104(c) (2021) (explaining that, if “the Board, on its own initiative, raises a question
    as to a potential jurisdictional defect, all parties to the proceeding and their representative(s), if
    any, will be given notice” and have an opportunity to present arguments on the matter); 38 C.F.R.
    § 20.4(b)(3) (2021) (establishing the applicability of § 20.104 to legacy appeals)
    . Thus, remand is
    warranted for the Board to either hear Mr. Brown’s appeal “or to provide a rationale for declining
    to do so.” Hall, 34 Vet.App. at 334. “If it dismisses his claim, the Board should identify the
    governing law, any formal defects in the appeal, whether waiver or forfe iture is a relevant
    consideration, and any other relevant factors.” Id.
    Next, the Court turns to Mr. Brown’s argument that his 2010 PTSD examination was so
    flawed as to be invalid. The crux of his argument is that the examiner marked “no” when asked to
    indicate whether a medical opinion had been requested. However, because Mr. Brown’s PTSD
    claim is being remanded, it would be inappropriate to address this argument before the Board has
    a chance to evaluate it in the first instance.
    Finally, Mr. Brown raises the issue of his entitlement to a non-service-connected pension.
    The Board found that the issue had been reasonably raised by the record, but that the RO had never
    adjudicated the matter. The Board remanded Mr. Brown’s pension claim to the Agency to be
    adjudicated in the first instance. Therefore, the issue of Mr. Brown’s pension is not currently before
    the Court. See Breeden v. Shinseki, 17 Vet.App. 475, 478 (2004) (holding that the Court lacks
    authority over claims remanded by the Board).
    III. CONCLUSION
    The Court VACATES the portions of the Board’s November 13, 2019, decision that
    dismissed Mr. Brown’s appeal regarding his service-connected acquired psychiatric disorder and
    REMANDS that matter for adjudication consistent with this opinion. The Court, however,
    6
    AFFIRMS the Board’s denial of a rating greater than 0% for the veteran’s bilateral hearing loss for
    the period before February 18, 2019, and 50% for the period thereafter.
    DATED: January 27, 2022
    Copies to:
    William D. Brown
    VA General Counsel (027)

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