Citation Nr: 1127597 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 08-09 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an effective date earlier than August 31, 2005, for the grant of service connection for bilateral hearing loss. 2. Entitlement to an initial rating higher than 10 percent for bilateral hearing loss before February 5, 2010, and an initial rating higher than 30 percent from February 5, 2010. 3. Entitlement to a compensable rating for kidney stones before March 17, 2008, and a rating higher than 10 percent from March 17, 2008. 4. Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1959 to April 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in November 2006 and in October 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). The claims for increase and the claim of service connection for a back disability are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT By a rating decision in November 2006, the RO granted service connection for a bilateral hearing loss disability and assigned an effective date of August 31, 2005, the date of receipt of the application to reopen the claim of service connection, and there was no pending, that is, an unadjudicated claim of service connection, before August 31, 2005, and the grant of service connection was not based on relevant official service department records that existed and had not been associated with the claims file when VA previously decided the claims, rather, the grant was based on records that VA could not have obtained when it decided the claims previously because the records did not exist when VA previously decided the claims. CONCLUSION OF LAW An effective date before August 31, 2005, for the grant of service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 5110(a), 7104, 7105 (West 2002); 38 C.F.R. § 3.400(b) (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the claim for an earlier effective date for service connection for a bilateral hearing loss disability, the RO provided pre-adjudication VCAA notice by letter, dated in October 2005 on the underlying claim of service connection for a bilateral hearing loss. Where, as here, service connection has been granted and the initial disability rating and effective date have been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision regarding the rating of the disability or the assignment of an effective date does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable to these claims. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO obtained service treatment records, VA records, and private medical records. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Earlier Effective Date for the Grant of Service Connection for a Bilateral Hearing Loss Disability Facts In August 1964, the Veteran filed his original claim of service connection for hearing loss in the left ear. In a rating decision in September 1964, the RO denied the claim. After the Veteran was notified of the adverse decision and of his right to appeal, he did not appeal and the decision became final by operation of law based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. In September 1997, the Veteran filed a claim of service connection for bilateral hearing loss. In a rating decision in September 1998, the RO adjudicated the claim as a claim to reopen and denied the claim. After the Veteran was notified of the adverse decision and of his right to appeal, he did not appeal and the decision became final by operation of law based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. The next correspondence from the Veteran was received by VA on August 31, 2005, when the Veteran filed an application to reopen the claim of service connection for a bilateral hearing loss disability. In a rating decision in May 2006, the RO initially denied the claim. The Veteran then filed a notice of disagreement. In a rating decision dated in November 2006 the RO granted service connection for a bilateral hearing loss disability and assigned an effective of August 31, 2005, the date of receipt of the application to reopen the claim. The RO's decision was based on new and material evidence, that is, a report of VA examination in March 2006 in which the VA examiner expressed the opinion that the Veteran's hearing loss was due to noise exposure in service. In February 2007, the Veteran expressed disagreement with the effective date for the grant of service connection for a bilateral hearing loss disability. The Veteran's file contains no other communication by the Veteran, other than the claims filed in August 1964 and in September 1997, before the Veteran filed his claim to reopen in August 2005. Analysis The determination of the effective date of an award is governed by 38 U.S.C. A. § 5110(a), which provides that the effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a); see 38 C.F.R. § 3.400(r). The Veteran argues that the effective for the grant of service connection for a bilateral hearing loss disability should be the date he originally filed his claim in 1964. In a rating decision in September 1964, the RO denied the claim of service connection for left ear hearing loss. In a rating decision in September 1998, the RO denied the application to reopen the claim of service connection, which was expanded to include bilateral hearing loss. After each adverse determination, the Veteran was notified of the adverse decision and of his right to appeal, but he did not appeal either rating decision by the RO and rating decisions became final by operation of law based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. An Appellant can attempt to overcome the finality of a prior final decision of the RO in only one of two ways: (1) by a request for revision of an RO decision based on clear and unmistakable error, or (2) by a claim to reopen based upon new and material evidence. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed.Cir.2002) (en banc); see also 38 U.S.C. § 7111(a). Of the two options, only a request for revision premised on clear and unmistakable error could result in the assignment of an earlier effective date for an award of service connection, because the proper effective date for an award based on a claim to reopen generally can be no earlier than the date on which that claim was received. 38 U.S.C. § 5110(a); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed.Cir.2005) (Absent a showing of clear and unmistakable error, the appellant cannot receive disability payments for a time frame earlier than the application date of the claim to reopen, even with new evidence supporting an earlier disability date.). And a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). While the Board has considered the Veteran's argument in February 2007 and March 2007 that the effective date should be the date he filed his original claim in 1964, the Veteran's argument falls short of alleging clear and unmistakable error, that is, an error of fact or of law that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (clear and unmistakable error is a very specific and rare kind of error; it is the kind of error of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error). At most, the argument raises a question of how the facts were previously weighed or evaluated. An allegation of error on the basis that the previous adjudications had improperly weight and evaluated evidence does not rise to the stringent definition of clear and unmistakable error. Fugo v. Brown, 65 Vet. App. 40, 43-44 (1993). The Board therefore concludes that the Veteran's argument cannot be reasonably construed, even under a liberal reading, to allege clear and unmistakable error in a previous rating decision by the RO. See Acciola v. Peake, 22 Vet. App. 320, 326 (2008) (a sympathetic reading of a motion of clear and unmistakable error can fill in details where the theory is not fully fleshed out, but it cannot supply a theory that is absent). For these reasons, the previous determinations by the RO became final and are accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. §§ 3.104(b) and 3.105(a). In his substantive appeal, the Veteran argued that the RO made an error in applying the law in deciding his claim. The Board construes the allegation of error in the current rating decision and not in the previous rating decisions. Any alleged error in the current rating decision would not result in any retroactive award before the date of receipt of the current claim to reopen. In the absence of an allegation of clear and unmistakable error in either the rating decision in October 1964 or in September 1998, the Board next must determine whether there was a pending claim for a bilateral hearing loss disability, that is, a claim that was not finally adjudicated, before the current claim to reopen was received in August 2005. A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the RO, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review by the Board. 38 C.F.R. § 3.160(d). A formal claim is a specific claim in the form prescribed by VA. 38 C.F.R. § 3.151(a). An informal claim is any communication or action indicating intent to apply for VA benefits. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). The Board must look to all communications from the Veteran which may be interpreted as a pending claim, but the record clearly shows there was no correspondence or action of any kind by the Veteran before August 2005 and the Veteran does not argue otherwise. The RO has established an effective date of August 31, 2005, that is, the date of receipt of the Veteran's claim to reopen, based on the presentation of new and material evidence to reopen the previously denied claims of service connection for a hearing loss disability. As the RO's decision was based on new and material evidence, that is, a report of VA examination in March 2006 in which the VA examiner expressed the opinion that the Veteran's hearing loss was due to noise exposure in service, evidence not previously considered, and as the grant of service connection was not based on the receipt of relevant official service department records that existed and had not been associated with the claims file when VA previously decided the claims, the provisions of 38 C.F.R. § 3.156(c), pertaining to the assignment of a retroactive effective date to the date entitlement arose or the date VA received the previously decided claim does not apply. In the absence of a specific allegation of clear and unmistakable error in any previous, finally adjudicated claim and as there is no pending claim, that is, an unadjudicated claim of service connection for a bilateral hearing loss disability before the current claim to reopen was received by VA and as the retroactive provisions of 38 C.F.R. § 3.156(c) do not apply, there is no factual or legal basis for an effective date before August 31, 2005, for the grant of service connection. For the foregoing reasons, the Board concludes that the proper effective date for the grant of service connection for a bilateral hearing loss disability based on a claim to reopen is the August 31, 2005, the date of receipt by VA of the claim to reopen. ORDER An effective date earlier than August 31, 2005, for the grant of service connection for bilateral hearing loss is denied. REMAND In correspondence in March 2011, the Veteran stated that his hearing has become worse since he was last examined by VA. He also stated that a recent CT scan showed recurrent kidney stones. As there appears to be material changes in disabilities, reexaminations are warranted under 38 C.F.R. § 3.327(a). On the claim of service connection for a back disability, the Veteran states that he injured his back during service. The service treatment records show that in July 1959 the Veteran slipped on stairs and twisted his back in the lumbar area and the impression was back strain. After service in January 2007, a private chiropractor stated that he had treated the Veteran for low back pain and degenerative joint disease and that the Veteran's low back problems began after an injury in service. As the evidence of record is insufficient to decide the claim, further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA audiology examination to determine the current level of bilateral hearing loss. 2. Ask the Veteran to clarify whether the treatment of kidney stones, including a kidney CT scan, after February 2010 has been provided by a private health care provider or by VA. If the Veteran identifies pertinent private medical records, ask the Veteran either to submit or to authorize VA to obtain on his behalf any private medical records after February 2010, pertaining to treatment of kidney stones, including a kidney CT scan. If the treatment of kidney stones has been provided by VA, including a kidney CT scan, obtain the VA records. 3. Afford the Veteran a VA examination to determine whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that the current degenerative joint disease of the lumbar spine, first shown in 2007, is related to a single episode of back strain after the Veteran fell on stairs and twisted his back in the lumbar are in July 1959 in service. If however after a review of the record, an opinion on causation is not possible without resort to speculation, the VA examiner is asked to clarify whether actual causation cannot be determined because there are several potential causes, and, if so, identify the potential causes that pertain to the Veteran, when the back strain in service is not more likely than any other to cause the current degenerative joint disease and that an opinion on causation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file should be made available to the examiner. 4. After the development has been completed, adjudicate the claims. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran 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 of Veterans' Appeals 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. 2010). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs