Alan R. Swain v. McDonald,
Opinion Number 14-0947, was decided January 8, 2015 and concerns an earlier
effective date for a ratings increase related to hearing loss.
The veteran was service connection for a hearing loss in
1956 but granted a non-compensable rating.
He sought an increase in 2007 and a 2008 VA audiology examination using the
Maryland CNC showed a non-compensable rating.
The veteran submitted in support 2009 and 2010 private audiology
examinations showing a normal precipitously sloping to profound hearing
loss. Neither examination noted the test
used and it appeared they did not use the Maryland CNC test.
Ultimately, an April 2013 remand from the Board resulted in
a June 2013 VA audiometric examination in which the examiner used the Maryland
CNC test showed normal precipitously sloping to profound hearing loss and the
examiner opined that the results were consistent with the 2009 and 2010
examination results.
The RO granted a 10% rating effective to the June 2013 VA
examination on the basis that an examination for hearing impairment must
include a Maryland CNC test and thus that the effective date of a claim for an
increased rating could be no earlier than the date of the Maryland CNC test
showing an increased disability rating was warranted.
The Court flatly rejected the VA’s position that the
effective date had to be tied to the Maryland CNC test result and stated
instead that “we have held that an effective date should not be assigned
mechanically based on the date of a diagnosis.
Rather, all the facts should be examined to determine the date that the veteran’s
disability first manifested.” Id. at *7.
The Court also reversed rather than remanded the case,
recognizing “[t]he only reason the Board did not assign an effective date as of
the November 10, 2009, audiometric test is because the Board thought it could
assign an effective date only as of the date of the Maryland CNC test.” Id. at *8.
This case shows that the proper focus for the effective date
is not the date of the diagnosis but the date the disability first
manifested. This case is in line with
cases such as Stower v. Shinseki which can be used as powerful tools to
significantly push back the effective date.
Decision by CJ Kasold, joined by J. Hagel and J. Schoelen.
