Single Judge Application, 38 C.F.R. § 4.84b, Tinnitus, Liberalizing, 1976

Excerpt from decision below: "However, in March 1976, VA amended § 4.84b to provide a 10% disability rating for tinnitus that is "[p]ersistent as a symptom of head injury, concussion[,] or acoustic trauma." 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976) (emphasis added); 41 Fed. Reg. 11291, 11298 (Mar. 18, 1976). Nevertheless, this liberalizing law does not entitle Mr. Girard to an effective date earlier than September 7, 2006, because he did not seek benefits for tinnitus until September 2007, more than one year after the March 1976 effective date of the liberalizing law. In such a situation, the earliest effective date that may be assigned pursuant to the liberalizing law is one year prior to the date of the receipt of Mr. Girard's claim–in this case, September 7, 2006. See 38 C.F.R. § 3.114(a)(3). ================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-2969 LULA J. GIRARD, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent. HAGEL, Judge: Lula J. Girard, who is self-represented, appeals a July 28, 2009, Board ofVeterans' Appeals (Board) decision denying her husband an effective date prior to September 7,2006, for the award of a 10% disability rating for tinnitus. Record (R.) at 3-13. Mrs. Girard's Noticeof Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues they believe torequire a precedential decision of the Court. Because the Board's determination that John C. Girard,Jr., was not entitled to an earlier effective date for the award of benefits for tinnitus was not clearlyerroneous, the Court will affirm the July 28, 2009, Board decision.I. FACTSMrs. Girard is the widow of veteran John C. Girard, Jr., who served on active dutyin the U.S.Army from June 1955 to May 1961. In May 1961, Mr. Girard filed a claim for VA benefits for a"hearing" disability. R. at 363. In July 1961, Mr. Girard underwent a VA audiological examinationand reported to the examiner that his hearing loss and tinnitus began when he was "exposed to allthe demolition noise in service." R. at 348. In May 1962, a VA regional office awarded Mr. Girardbenefits for bilateral hearing loss and assigned a 10% disability rating. The regional office did notadjudicate a claim for benefits for tinnitus at that time. Mr. Girard did not appeal that decision andit became final.In September 2007, more than 45 years after the initial rating decision, Mr. Girard filed aclaim for VA benefits for tinnitus. In January 2008, the regional office awarded Mr. Girard benefitsfor tinnitus and assigned a 10% disability rating, effective September 7, 2007, the date of his claim.Mr. Girard filed a timely Notice of Disagreement with that decision, requesting an earlier effectivedate. In February 2009, Mr. Girard filed a motion to revise the May 1962 regional office decisionbased on clear and unmistakable error that asserted that the regional office "ignored or overlooked"a diagnosis of tinnitus that was of record at the time of the decision. R. at 100.In May 2009, after further development including the assignment of a September 7, 2006,effective date for the award of benefits for tinnitus, the regional office determined that there wasclear and unmistakable evidence in the May 1962 regional office decision because the evidence ofrecord at that time "show[ed] treatment of a chronic disability [of tinnitus] within one year ofdischarge." R. at 47. Therefore, the regional officeassigned him a noncompensable disability rating for tinnitus from May 19, 1961, the date of his initial claim, to September 6, 2006, and a 10%disability rating effective thereafter. Mr. Girard filed a timely Notice of Disagreement with that decision, arguing that he was entitled to a higher disability rating because "the acoustic trauma towhichhewasexposed duringservicewasequivalenttoaconcussion,"andhesubsequentlyperfectedhis appeal to the Board. R. at 40.In July 2009, the Board issued the decision currently on appeal, which denied entitlement toan effective date prior to September 7, 2006, for the award of a 10% disability rating for tinnitus.1 Specifically, the Board explained that tinnitus caused by acoustic trauma was not a compensable disability under the ratings schedule until March 1976 and that, pursuant to 38 C.F.R. § 3.114, the earliest effective date that could be assigned for Mr. Girard's tinnitus based on that liberalizing law The Court notes that the Board refers to an "earlier effective date claim" and a "[clear and unmistakable error]claim." R. at 7, 12. However, there is no such thing as a freestanding claim for an earlier effective date. Rudd v.Nicholson, 20 Vet.App. 296, 300 (2006). Likewise, "an assertion of clear and unmistakable error is a motion or a request, rather than a claim." Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011).12would be September 7, 2006, one year prior to the date of his claim, which was filed more than one year after March 1976.Mrs. Girard filed a timelyNotice of Appeal with that decision and indicated that her husband died three days after the Board issued its decision. In response to a Court order, Mrs. Girard fileda timely motion for substitution, which the Court granted nunc pro tunc to the date she filed herNotice of Appeal. II. ANALYSIS Mrs. Girard argues that the Board's determination that her husband was not entitled to an effective date earlier than September 7, 2006, for the award of benefits for tinnitus was clearly erroneous. The Court disagrees.A Board determination of the proper effective date is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Hanson v. Brown,9 Vet.App. 29, 32 (1996); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). "A factual finding 'is"clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,395 (1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently inthe first instance. See id.Generally, the effective date for an award of disability compensation benefits is "the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (2011); see also 38 U.S.C. § 5110(a). When VA revises a final decision based on clear and unmistakable error,the effective date is the "[d]ate from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision." 38 C.F.R. § 3.400(k). In addition,where disability compensation benefits are awarded or increased pursuant to a liberalizing law or administrative issue, "the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue."38 U.S.C. § 5110; see also 38 C.F.R. § 3.114(a) (2011); 38 C.F.R. § 3.400(p). Where, as here, "a3claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of suchrequest." 38 C.F.R. § 3.114(a)(3).Because Mr. Girard was awarded benefits for tinnitus retroactive to May 19, 1961, based ona finding of clear and unmistakable error in the May 1962 regional office decision, the Court must rely on the law extant at that time to determine whether or not the Board's determination that he was not entitled to a compensable disability rating prior to September 7, 2006, was clearly erroneous.See 38 C.F.R. § 3.400(k). In May 1962, the rating schedule provided a compensable disabilityratingonly for tinnitus resulting from brain trauma or cerebral arteriosclerosis;2tinnitus resulting from anyother cause, including acoustic trauma, was considered noncompensable. See VA SCHEDULE FORRATING DISABILITIES 63, 112 (1945) (Diagnostic Codes 6260, 8045, and 8046).In the instant case, Mrs. Girard does not point to any evidence of record that demonstratesthat her husband's tinnitus was caused by brain trauma or cerebral arteriosclerosis sufficient towarrant a compensable disability rating retroactive to May 1961. Rather, Mr. Girard previously asserted that he was entitled to a compensable disability rating prior to September 7, 2006, because"the acoustic trauma to which he was exposed duringservicewas equivalentto a concussion," whichis consistent with a July 1961 VA medical examination report indicating that his tinnitus was causedby noise exposure. R. at 40. Mr. Girard's theoryof entitlement is contradicted by the plain languageof the diagnostic codes for rating tinnitus in 1962, which specifically provided for a 10% disabilityrating for tinnitus due to brain trauma and cerebral arteriosclerosis and a noncompensable disabilityrating for tinnitus due to all other causes, including acoustic trauma. Moreover, Mrs. Girard doesnot citeanylegalprecedenttosupportherhusband'sinterpretation oftheapplicablediagnostic codes.Although the Court is cognizant that Mrs. Girard is self-represented, her status as a pro se appellantdoes not relieve her of her burden of demonstrating error. See Hilkert v. West, 12 Vet.App. 145, 151(1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff'd, 232 F.3d908 (Fed. Cir. 2000) (table). Consequently, the Court concludes that the Board's determination thatArteriosclerosis is "any of a group of diseases characterized by thickening and loss of elasticity of arterialwalls." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 144 (32d ed. 2011). Cerebral arteriosclerosis is"arteriosclerosis of the arteries of the brain." Id.24Mr. Girard was not entitled to an earlier effective date for his award of benefits for tinnitus under therating schedule in effect at the time of the May1962 regional office decision is not clearlyerroneous.The rating schedule was added to the Code of Federal Regulations in May 1964 andDiagnostic Codes 6260, 8045, and 8046 were codified without change. See 38 C.F.R. §§ 4.84b,4.124a (1965); 29 Fed. Reg. 6718 (May 22, 1964). However, in March 1976, VA amended § 4.84b to provide a 10% disability rating for tinnitus that is "[p]ersistent as a symptom of head injury ,concussion[,] or acoustic trauma." 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976) (emphasisadded); 41 Fed. Reg. 11291, 11298 (Mar. 18, 1976). Nevertheless, this liberalizing law does not entitle Mr. Girard to an effective date earlier than September 7, 2006, because he did not seek benefits for tinnitus until September 2007, more than one year after the March 1976 effective date of the liberalizing law. In such a situation, the earliest effective date that may be assigned pursuantto the liberalizing law is one year prior to the date of the receipt of Mr. Girard's claim–in this case,September 7, 2006. See 38 C.F.R. § 3.114(a)(3). Likewise, even assuming without deciding thata June 1999 amendment to the rating schedule for diseases of the ear, which transferred DiagnosticCode 6260 to § 4.87 and provided a 10% disability rating for recurrent tinnitus without anyrestriction on the cause of the condition was a liberalizing law, Mr. Girard would not be entitled toan earlier effective date pursuant to that amendment because he did not file his claim within one yearof the effective date of that liberalizing law.3See id.; see also 38 C.F.R. § 4.87 (1999); 64 Fed. Reg.25202, 25210 (May 11, 1999).To the extent that Mrs. Girard argues that, but for the regional office's clear and unmistakableerror in the May 1962 decision, VA would have reviewed her husband's entitlement to benefits fortinnitus on its own initiative within one year of the March 1976 amendment, thereby entitling himto an effective date commensurate with the enactment of that liberalizing law under § 3.114(a)(1),VA is not required to review a veteran's entitlement to benefits pursuant to a liberalizing law. SeeMcCay v. Brown, 106 F.3d 1577, 1581 (Fed. Cir. 1997) ("[Section 3.114(a)] would permit [VA] toidentify and apply the provisions of a liberalized law or administrative issue on their own initiativewhere feasible; or, where it is not feasible to identify potential beneficiaries administratively, toIn June 2003, VA also amended the explanatory notes to § 4.87, Diagnostic Code 6260, which are not relevantto this appeal. 68 Fed. Reg. 25822, 25823 (May 14, 2003).35require the filing of an application" (quoting S. Rep. No. 87-2042, at 5 (1962), reprinted in 1962U.S.C.C.A.N. 3260, 3264-65)); Spencer v. Brown, 4 Vet.App. 283, 288 (1993) (explaining that38 U.S.C. § 5110(g), the authorizing statute for § 3.114(a), "does not. . . create a requirement thatVA adjudicate de novo a previously and finally denied claim when there has been an interveningliberalizing law that may affect the claimant's entitlement to benefits," but rather "presuppose[s] theexistence of such a right [to a de novo adjudication]"). Accordingly, the Court cannot award Mr.Girard an earlier effective date under § 3.114(a)(1) based purely on speculation that VA may havetimelyconductedthatdiscretionaryreviewiftheMay1962regionalofficedecisionhacorrectlyin the first instance. Consequently, the Court concludes that the Board's determination thatMr. Girard was not entitled to an earlier effective date for his award of benefits for tinnitus pursuantto a liberalizing law is not clearly erroneous.Mrs. Girard next argues that her husband did not file a claim for benefits for tinnitus beforeSeptember 2007 because the Missouri Veterans Commission, which she claims was "acting onbehalf of [VA]," "discouraged him from reapplying and refused to assist him in doing so" andmisinformed him about the likelihood of success of such a claim. Appellant's Brief (Br.) at 2; ReplyBr. at 1. As an initial matter, the Court takes judicial notice of the fact that, contrary to Mrs. Girard'scontention, the Missouri Veterans Commission is part of the Missouri state government and not partof VA.See MISSOURI DEPARTMENT OF PUBLIC SAFETY: VETERANS COMMISSION,http://mvc.dps.mo.gov/ (last visited Sept. 7, 2011); see also Smith v. Derwinski, 1 Vet.App. 235, 238(1991) ("Courts may take judicial notice of facts not subject to reasonable dispute." (citing FED. R.EVID. 201(b))); Brannon v. Derwinski, 1 Vet.App 314, 316-17 (1991). Although the Court issympathetic to Mrs. Girard's situation, the Court cannot assign an earlier effective date based solelyon principles of equity. See Moffitt v. Brown, 10 Vet.App. 214, 225 (1997) ("[T]his Court is not acourt of equity and cannot provide equitable relief.").Mrs. Girard also asserts that the Board should have assigned her husband an earlier effectivedate for his award of benefits for tinnitus because he was "entitled to the benefit of the doubt whenevidence is lacking to the contrary." Appellant's Br. at 2. However, the benefit of the doubt onlyapplies "when there is an approximate balance of positive and negative evidence regarding anyissuematerial to the determination of a matter." 38 U.S.C. § 5107(b). Here, contrary to Mrs. Girard's6contention, the Board found that the preponderance of the evidence weighed against the assignmentof an earlier effective date, a factual determination that she does not challenge on appeal. R. at 13.Consequently, the benefit of the doubt was not applicable, and the Board's determination in thatregard was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance withlaw." Gilbert, 1 Vet. App. at 58.Finally, Mrs. Girard asserts that "only [Mr. Girard's] peace time service has been considered so far" in assigning an effective date for his award of benefits for tinnitus. Appellant's Br. at 3.However, Mrs. Girard fails to cite any statute, regulation, or other legal precedent, nor can the Court discern any, explaining why this distinction is relevant to the assignment of an effective date.Therefore, the Court concludes that Mrs. Girard has failed to carry her burden of demonstrating error in that regard. See Hilkert, 12 Vet.App. at 151.III. CONCLUSION Upon consideration of the foregoing, the July 28, 2009, Board decision is AFFIRMED.DATED: October 6, 2011 Copies to:Lula J. Girard VA General Counsel (027)7