Citation Nr: 0609885	
Decision Date: 04/05/06    Archive Date: 04/13/06

DOCKET NO.  04-20 039	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, 
Iowa


THE ISSUES

1.  Entitlement to an effective date earlier than September 
22, 1969, for the award of service connection for bilateral 
hearing loss. 
 
2.  Entitlement to an effective date earlier than December 
22, 1998, for the award of a 100 percent rating for bilateral 
hearing loss. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Siobhan Brogdon, Counsel


INTRODUCTION

The veteran served on active duty from April 15 to August 18, 
1943.  

This appeal comes before the Department of Veterans Affairs 
(VA) Board of Veterans' Appeals (Board) from an August 2003 
rating decision of the VA Regional Office (RO) in Des Moines, 
Iowa that granted service connection for bilateral hearing 
loss, effective from September 22, 1969, and assigned a 100 
percent disability rating from December 22, 1998.  

The appellant was afforded a personal hearing at the RO in 
August 2004.  The transcript is of record.  At the hearing 
and in correspondence received in August 2004, the veteran 
withdrew the issues of entitlement to concurrent payments of 
VA disability pension and compensation and entitlement to 
monthly compensation greater than $110.00 for a spouse 
determined to be in need of regular aid and attendance.  
These matters are no longer for appellate consideration.

This case was advanced on the docket on account of the 
veteran's age.  

(Consideration of the claim of entitlement to an effective 
date earlier than December 22, 1998, for the award of a 100 
percent rating for bilateral hearing loss is deferred pending 
completion of the development sought in the remand that 
follows the decision below.)




FINDINGS OF FACT

1.  Service connection for defective hearing was denied by a 
September 1967 Board decision.

2.  The veteran's application to reopen a claim of 
entitlement to service connection for hearing loss was 
received on August 25, 1969.


CONCLUSION OF LAW

The criteria for an effective date of August 25, 1969, for 
the grant of service connection for bilateral hearing loss 
have been met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2005); 
38 C.F.R. § 3.400 (2005).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

At the outset, the Board notes that the Veterans Claims 
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 
2096 (2000), was promulgated in November 2000, and has 
imposed new duties on VA to provide notice and assistance to 
claimants in order to help them substantiate their claims.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 
& Supp. 2005).  To implement the provisions of the law, VA 
promulgated regulations codified at 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a) (2005).  

The Act and implementing regulations include an enhanced duty 
on the part of VA to notify a claimant of the information and 
evidence needed to substantiate a claim.  38 U.S.C.A. § 5103; 
38 C.F.R. § 3.159(b) (2005).  In addition, they define the 
obligation of VA with respect to its duty to assist the 
claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 
38 C.F.R. § 3.159(c) (2005).

Considering the record in light of the duties imposed by the 
VCAA and its implementing regulations, the Board finds that 
all notification and development action needed to fairly 
adjudicate the claim for an earlier effective date for 
service connection has been accomplished.  As evidenced by 
the statement of the case, and the supplemental statements of 
the case, the appellant and his representative have been 
notified of the laws and regulations governing entitlement to 
the benefit sought, and informed of the evidence of record.  
These discussions also served to inform him of the evidence 
needed to substantiate the claim.

The Board also finds that the statutory and regulatory 
requirement that VA notify a claimant of what evidence, if 
any, will be obtained by the claimant and which evidence, if 
any, will be obtained by VA, has been met.  38 U.S.C.A. 
§ 5103(a); see Quartuccio v. Principi, 16 Vet. App. 183 
(2002) (addressing the duties imposed by 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159).  In a letter to the 
appellant dated in June 2005, the RO informed him of what the 
evidence had to show to substantiate the claim, what medical 
and other evidence the RO needed from him, what information 
or evidence he could provide in support of the claim, and 
what evidence VA would try to obtain on his behalf.  The 
letter also advised him to submit relevant evidence or 
information in his possession.  38 C.F.R. § 3.159(b) (2005).

The United States Court of Appeals for Veterans Claims 
(Court) has held that notice required by 38 U.S.C.A. 
§ 5103(a), and 38 C.F.R. § 3.159(b), should generally be 
provided prior to the initial adverse decision on the claim.  
Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).  The 
Court went on to say, however, that its decision was not 
meant to invalidate any existing decision made prior to such 
notice, and, indeed, that VA could satisfy VCAA notice 
requirements by ensuring that the proper notice was 
ultimately provided after the initial adverse decision on the 
claim.  Id, at 120, 122-4.  The Board does not find that any 
late notice under the VCAA requires remand to the RO.  
Nothing about the evidence or any response to the RO's 
notification suggests that the case must be re-adjudicated ab 
initio to satisfy the requirements of the VCAA.  See also 
Dingess v. Nicholson, No. 01-1917 (U.S. Vet. App. March 3, 
2006), 

The Board finds that VA has made the required efforts to 
assist the appellant in obtaining the evidence necessary to 
substantiate his claim.  Private clinical data identified by 
the veteran have been requested and associated with the 
claims folder, and extensive VA outpatient records have also 
been retrieved.   He was provided the opportunity for a 
Travel Board hearing at the RO in August 2005 but declined 
this option in a letter dated in July 2005.  Under the 
circumstances, the Board finds that further assistance is not 
required.  See 38 U.S.C.A. § 5103 A (a) (2).  

The appellant avers that service connection for hearing loss 
should have been effective as of the date of separation from 
his active military service in 1943.  He filed claims as 
early as August 1946 and he appealed an April 1965 rating 
decision that denied service connection for hearing loss.  By 
a September 1967 decision, the Board denied the claim.

Absent a finding of clear and unmistakable error, the 
assignment of effective dates of awards is generally governed 
by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2005) and 38 C.F.R. 
§ 3.400 (2005).  The effective date for a reopened claim, 
after a final disallowance (such as the 1967 Board denial), 
shall be the date of receipt of the new claim or date 
entitlement arose, whichever is later. 38 C.F.R. 
§ 3.400(q)(1)(ii) (2005).  See Nelson v. Principi, 18 Vet. 
App. 407, 409 (2004); Leonard v. Principi, 17 Vet. App. 447, 
451 (2004); Sears v. Principi, 16 Vet. App. 245, 247 (2002), 
aff'd, 349 F.3d 1326 (Fed. Cir. 2003); see also Lapier v. 
Brown, 5 Vet. App. 215 (1993).

Applicable regulations provide that a claim may be either a 
formal or informal written communication "requesting a 
determination of entitlement, or evidencing a belief in 
entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2005).  A 
claim, whether "formal" or "informal," must be "in writing" 
in order to be considered a "claim" or "application" for 
benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. 
Cir. 1999).  Any claim for VA benefits must be submitted in 
the form prescribed by the Secretary.  38 U.S.C.A. § 5101(a) 
(West 2002 & Supp. 2005).  Section § 5101(a) is a clause of 
general applicability and mandates that a claim must be filed 
in order for any type of benefit to accrue or be paid. See 
Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998).  An 
informal claim is any communication indicating an intent to 
apply for one or more benefits, and must identify the benefit 
sought. 38 C.F.R. § 3.155(a) (2005).  

As noted above, the evidence discloses that the veteran filed 
claims for service connection for hearing loss several times 
after separation from service beginning in 1946.  The Board 
denied service connection for hearing loss in September 1967.  
This decision is final.  See 38 U.S.C.A. § 7104 (West 2002 & 
Supp. 2005);  38 C.F.R. §§ 20.1100 (2005).  As such, new and 
material evidence was required to reopen the claim.  See 38 
U.S.C.A. § 5108 (West 2002 & Supp. 2005); 38 C.F.R. 
§ 3.156(a) (2005).  The record reflects that following the 
final Board denial of the claim in 1967, the veteran 
ostensibly filed a claim for nonservice-connected pension 
that was received on August 25, 1969.  In his application for 
pension, he noted a number of disabilities contributing to 
inability to work, including hearing loss.  In a letter 
received on September 22, 1969, the veteran requested that he 
be service connected for his "worst disability."

In support of his claim, the appellant submitted a letter 
from the Mayo Clinic that, among other things, noted that he 
had had difficulty hearing of at least 20 years' duration.  
The examining otologist felt that his hearing loss was due to 
noise exposure.  The record reflects, however, that the 
agency of original jurisdiction did not respond to the 
appellant's additional evidence, thereby leaving the claim in 
an open status.  The appellant subsequently attempted to 
reopen his claim in 1988, 1990, 1999 and February 2001.  

The record reflects that at the request of his Congressman, 
the veteran's case was sent to the VA Compensation and 
Pension service for administrative review.  In a 
determination dated in December 2001, it was found that 
service connection for hearing loss should have been grated 
following the issuance of opinions relevant to his claim by 
the VA General Counsel in 1985 and 1988.  These opinions 
concluded that service connection may be granted for 
hereditary diseases that preexisted service and progressed at 
an abnormally high rate during service.  See VA OGC. Prec. 
Op. No. 8-88 (Sept. 29, 1988) (reissued as VAOPGCPREC 67-90 
(July 18, 1990)).

As noted previously, the veteran filed a claim for pension 
that was received on August 25, 1969 citing hearing loss as a 
disability.  A claim for compensation may be considered to be 
a claim for pension and a claim for pension may be considered 
to be a claim for compensation.  38 U.S.C.A. § 5101(a); 38 
C.F.R. § 3.151(a) (2005).  Therefore, for the purposes of 
this appeal, it may be found that a claim to reopen service 
connection for hearing loss was first received after the 1967 
Board decision on August 25, 1969.  

The Board thus finds that the award of service connection for 
hearing loss is warranted from August 25, 1969, based on the 
date that the claim to reopen was received.  Although the 
veteran maintains that the effective date of service 
connection should be made retroactive to at least the filing 
of his original claim in 1946, it is shown that service 
connection for hearing loss was previously denied by the 
Board in 1967.  Because this determination is final, the 
earliest date that may be assigned for an award of service 
connection is the date a claim to reopen was received.  
38 U.S.C.A. § 5110.  An effective date of August 25, 1969, 
but no earlier, is granted.  


ORDER

An effective of August 25, 1969, for the award of service 
connection for bilateral hearing loss is granted.


REMAND

The veteran asserts that he is entitled to an effective date 
earlier than December 22, 1998, for the award of a 100 
percent rating for his hearing loss.

As noted previously, service connection for bilateral hearing 
loss has been granted effective from August 25, 1969.  In a 
rating action dated in August 2003, the RO assigned 10 
percent, 20 percent, 40 percent, 60 percent and 100 percent 
ratings effective from September 22, 1969, June 24, 1970, 
September 16, 1980, September 29, 1980 and December 22, 1998, 
respectively.  

The Board observes, however, that review of the evidence 
shows no document of record that discloses how the RO arrived 
at the assigned ratings for those specific dates, except in 
the latter-most instance.  The rating decision of August 2003 
and the February 2005 supplemental statement of the case in 
this regard only provide statements as to the levels of 
hearing loss shown on audiogram on those dates without 
providing the regulatory criteria that support the RO's 
conclusions.  The Board is of the opinion that apprising the 
veteran of the schedular criteria for rating hearing loss 
dating back to 1969 is a function of VA's duty to assist in 
order that he may be properly informed as to why higher 
ratings for those time frames were not assigned.  This also 
places the veteran on notice of what evidence was required to 
establish a 100 percent rating at any time prior to December 
22, 1998.

Accordingly, this case is REMANDED for the following actions:

1.  The RO must review the claims file 
and ensure that all notification and 
development actions required by 
38 U.S.C.A. §§ 5102, 5103, and 5103A 
(West 2002 & Supp. 2005), the 
implementing regulations found at 
38 C.F.R. § 3.159 (2005), and any other 
legal precedent are fully complied with 
and satisfied.  The veteran should 
specifically be told what is required to 
substantiate a claim for a 100 percent 
disability rating for bilateral hearing 
loss earlier than December 22, 1998, and 
advised of the information and evidence 
needed to substantiate the claim.  The 
veteran should be told what part of such 
evidence he should obtain and what part 
the RO will attempt to obtain on his 
behalf.  He should also be advised to 
provide any evidence in his possession 
that is pertinent to his claim.  See 
Quartuccio v. Principi, 16 Vet. App. 183 
(2002); see also Charles v. Principi, 16 
Vet. App. 370, 373-374 (2002).  

2.   After undertaking any further 
development deemed appropriate, the RO 
should readjudicate the issue on appeal.  
The RO's adjudication should include 
consideration of rating criteria for 
award of a 100 percent rating that have 
been effective since 1969 with various 
amendments made to those criteria over 
the years.  If the benefit sought is not 
granted, the appellant should be 
provided with a supplemental statement 
of the case and afforded an opportunity 
to respond.  The supplemental statement 
of the case should set forth the various 
rating criteria.  38 C.F.R. § 19.29(b) 
(2005).  Thereafter, the claims folder 
should be returned to the Board for 
further consideration. 

The appellant has the right to submit additional evidence and 
argument on the matter the Board has remanded.  Kutscherousky 
v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or by 
the United States Court of Appeals for Veterans Claims for 
additional development or other appropriate action must be 
handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 
7112 (West Supp. 2005).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs