Veteranclaims’s Blog

October 28, 2011

Tinnitus, Liberalizing Law of 1976, 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976)

Filed under: Uncategorized — veteranclaims @ 2:33 pm

Excerpt from decision below:
“The rating schedule was added to the Code of Federal Regulations in May 1964 and Diagnostic 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 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.”
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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 of
Veterans’ 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 Notice
of Appeal was timely, and the Court has jurisdiction to review the Board
decision pursuant to
38 U.S.C. § 7252(a). Neither party requested oral argument or identified
issues they believe to
require 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 clearly
erroneous, the Court will affirm the July 28, 2009, Board decision.
I. FACTS
Mrs. 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 examination
and reported to the examiner that his hearing loss and tinnitus began when
he was “exposed to all
the demolition noise in service.” R. at 348. In May 1962, a VA regional
office awarded Mr. Girard

benefits for bilateral hearing loss and assigned a 10% disability rating.
The regional office did not
adjudicate a claim for benefits for tinnitus at that time. Mr. Girard did
not appeal that decision and
it became final.
In September 2007, more than 45 years after the initial rating decision,
Mr. Girard filed a
claim for VA benefits for tinnitus. In January 2008, the regional office
awarded Mr. Girard benefits
for 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 effective
date. In February 2009, Mr. Girard filed a motion to revise the May 1962
regional office decision
based 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 was
clear and unmistakable evidence in the May 1962 regional office decision
because the evidence of
record at that time “show[ed] treatment of a chronic disability [of
tinnitus] within one year of
discharge.” R. at 47. Therefore, the regional officeassigned him a
noncompensable disabilityrating
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 to
whichhewasexposed duringservicewasequivalenttoaconcussion,”
andhesubsequentlyperfected
his appeal to the Board. R. at 40.
In July 2009, the Board issued the decision currently on appeal, which
denied entitlement to
an 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).
1
2

would 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 filed
a timely motion for substitution, which the Court granted nunc pro tunc to
the date she filed her
Notice 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 in
the 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, “a
3

claim 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 such
request.” 38 C.F.R. § 3.114(a)(3).
Because Mr. Girard was awarded benefits for tinnitus retroactive to May 19,
1961, based on
a 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 May1962, the rating schedule provided a
compensable disabilityrating
only for tinnitus resulting from brain trauma or cerebral arteriosclerosis;
2
tinnitus resulting from any
other cause, including acoustic trauma, was considered noncompensable. See
VA SCHEDULE FOR
RATING 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 demonstrates
that her husband’s tinnitus was caused by brain trauma or cerebral
arteriosclerosis sufficient to
warrant 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,” which
is consistent with a July1961 VA medical examination report indicating
that his tinnitus was caused
by noise exposure. R. at 40. Mr. Girard’s theoryof entitlement is
contradicted by the plain language
of the diagnostic codes for rating tinnitus in 1962, which specifically
provided for a 10% disability
rating for tinnitus due to brain trauma and cerebral arteriosclerosis and
a noncompensable disability
rating for tinnitus due to all other causes, including acoustic trauma.
Moreover, Mrs. Girard does
not citeanylegalprecedenttosupportherhusband’sinterpretation
oftheapplicablediagnostic codes.
Although the Court is cognizant that Mrs. Girard is self-represented, her
status as a pro se appellant
does 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.3d
908 (Fed. Cir. 2000) (table). Consequently, the Court concludes that the
Board’s determination that
Arteriosclerosis is “any of a group of diseases characterized by
thickening and loss of elasticity of arterial
walls.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 144 (32d ed. 2011).
Cerebral arteriosclerosis is
“arteriosclerosis of the arteries of the brain.” Id.
2
4

Mr. Girard was not entitled to an earlier effective date for his award of
benefits for tinnitus under the
rating schedule in effect at the time of the May1962 regional office
decision is not clearly erroneous.
The rating schedule was added to the Code of Federal Regulations in May
1964 and Diagnostic 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) (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). Likewise, even assuming
without deciding that
a June 1999 amendment to the rating schedule for diseases of the ear,
which transferred Diagnostic
Code 6260 to § 4.87 and provided a 10% disability rating for recurrent
tinnitus without any
restriction on the cause of the condition was a liberalizing law, Mr.
Girard would not be entitled to
an earlier effective date pursuant to that amendment because he did not
file his claim within one year
of the effective date of that liberalizing law.3
See 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 unmistakable
error in the May 1962 decision, VA would have reviewed her husband’s
entitlement to benefits for
tinnitus on its own initiative within one year of the March 1976 amendment,
thereby entitling him
to 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. See
McCay v. Brown, 106 F.3d 1577, 1581 (Fed. Cir. 1997) (“[Section 3.114(a)]
would permit [VA] to
identify and apply the provisions of a liberalized law or administrative
issue on their own initiative
where feasible; or, where it is not feasible to identify potential
beneficiaries administratively, to
In June 2003, VA also amended the explanatory notes to § 4.87, Diagnostic
Code 6260, which are not relevant
to this appeal. 68 Fed. Reg. 25822, 25823 (May 14, 2003).
3
5

require the filing of an application” (quoting S. Rep. No. 87-2042, at 5 (
1962), reprinted in 1962
U.S.C.C.A.N. 3260, 3264-65)); Spencer v. Brown, 4 Vet.App. 283, 288 (1993) (
explaining that
38 U.S.C. § 5110(g), the authorizing statute for § 3.114(a), “does not
. . . create a requirement that
VA adjudicate de novo a previously and finally denied claim when there has
been an intervening
liberalizing law that may affect the claimant’s entitlement to benefits,”
but rather “presuppose[s] the
existence 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 have
timelyconductedthatdiscretionaryreviewiftheMay1962regionalofficedecisionha
correctlyin the first instance. Consequently, the Court concludes that the
Board’s determination that
Mr. Girard was not entitled to an earlier effective date for his award of
benefits for tinnitus pursuant
to a liberalizing law is not clearly erroneous.
Mrs. Girard next argues that her husband did not file a claim for benefits
for tinnitus before
September 2007 because the Missouri Veterans Commission, which she claims
was “acting on
behalf of [VA],” “discouraged him from reapplying and refused to assist
him in doing so” and
misinformed him about the likelihood of success of such a claim.
Appellant’s Brief (Br.) at 2; Reply
Br. at 1. As an initial matter, the Court takes judicial notice of the
fact that, contrary to Mrs. Girard’s
contention, the Missouri Veterans Commission is part of the Missouri state
government and not part
of 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 is
sympathetic to Mrs. Girard’s situation, the Court cannot assign an earlier
effective date based solely
on principles of equity. See Moffitt v. Brown, 10 Vet.App. 214, 225 (1997
) (“[T]his Court is not a
court of equity and cannot provide equitable relief.”).
Mrs. Girard also asserts that the Board should have assigned her husband
an earlier effective
date for his award of benefits for tinnitus because he was “entitled to
the benefit of the doubt when
evidence is lacking to the contrary.” Appellant’s Br. at 2. However, the
benefit of the doubt only
applies “when there is an approximate balance of positive and negative
evidence regarding anyissue
material to the determination of a matter.” 38 U.S.C. § 5107(b). Here,
contrary to Mrs. Girard’s
6

contention, the Board found that the preponderance of the evidence
weighed against the assignment
of 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 that
regard was not “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with
law.” 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 failedto carryher
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

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1 Comment »

  1. If an injustice has ocurred, and I believe it has in this case; the benefit of doubt should be with Luyla Girard and her claim of tinnitus for her deceased husband. The law was liberalized to cover tinnitus in March, 1976. The VA did not have to initiate review of its files for past claims to inform claimants of this new statute, but they should have. This man served his nation, and the nation now should serve his widow. Spare me the magnetic stuff of ;we support ourt troops” and returning heroes. Our veterans deserve real support not lip service.

    Comment by Ivor Parsons — August 13, 2012 @ 10:23 pm


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