Citation Nr: 1220344 Decision Date: 06/11/12 Archive Date: 06/22/12 DOCKET NO. 10- 00 044A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an effective date earlier than July 12, 2007 for service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from June 1951 to March 1953. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's initial claim of entitlement to service connection for bilateral hearing loss disability was denied by the RO in July and August 1988. 2. The Veteran filed to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss disability on July 12, 2007. 3. In an August 2008 rating decision, the RO granted service connection for bilateral hearing loss disability and assigned a 100 percent disability rating, effective July 12, 2007. 4. Prior to the July 2007 request to reopen there were no pending requests, either formal or informal, to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss disability. CONCLUSION OF LAW The criteria for an effective date earlier than July 12, 2007, for the award of service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated. Additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3). The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning an earlier effective date and citing the applicable statutes and regulations. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), and VA medical records. Additionally, the claims file contains the statements of the Veteran and his son in support of his claim. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to obtain. The Veteran has alleged that his hearing loss disability worsened since 1988; however, as discussed in further detail below, the disability level is not pertinent to the issue on appeal; thus, records reflecting a decrease in hearing acuity are not relevant and a remand to obtain them is not warranted. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Criteria Earlier effective date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency, and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §§ 3.400, 3.400(b)(2) (2011). If a claim is reviewed at the request of the claimant more than one year after the effective date of a liberalizing law, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C.A. § 101(30) (West 2002); 38 C.F.R. § 3.1(p) (2011). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C.A. § 101(30); 38 C.F.R. § 3.1(r) (2011). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155 (2011). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Historically, the Veteran's claim for entitlement to service connection for bilateral hearing loss disability was denied by the RO in a July 1988 rating decision. The claim was again denied by the RO in an August 1988 rating decision. The Veteran did not file an appeal, and the denial became final. In April 2006, the RO denied several other claims of the Veteran, which he appealed. On July 12, 2007, the RO received correspondence from the Veteran which stated, "I would like to add the following conditions to my pending appeal. -Hearing loss. I have attached medical evidence to support my claim." Thus, the record reflects that the Veteran filed a claim, on July 12, 2007, to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss disability. Subsequently, in August 2008, the RO granted service connection for bilateral hearing loss disability with an effective date of July 12, 2007. The Board has reviewed the claims file for any earlier evidence which could be considered an informal claim to reopen his claim for entitlement to service connection for bilateral hearing loss disability. As noted above, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155 (2011). In December 2005, the Veteran's son submitted a statement to VA in which he stated that he was writing on behalf of his father to "request a change in his health benefits disability status." The son, R.J., stated that the Veteran's "disability status is 30 percent, but as indicated on the attached medical records documenting his health decline, we feel that his disability status should be re-evaluated. His health is at the level where handicap features are needed in his home to insure his mobility and safety. As I am sure he will qualify, he wants to request the program where the V.A. would come into the home, assess for necessary handicap changes and complete installation. Within the last couple of years, [the Veteran] has been hospitalized several times and has had a pace maker added, suffered from congestive heart failure, severe hearing loss, UTI problems and has had to go through rehabilitation for physical and occupational therapy." The RO considered the December 2005 correspondence to be a claim for in increase for his service-connected disabilities, as well as a claim for specially adapted housing. Such claims were denied by the RO in April 2006. In May 2006, the Veteran's son submitted a notice of disagreement to the April 2006 rating decision. In the May 2006 statement, the Veteran's son stated "also, it is documented that as my father has been prescribed hearing aids by the VA, his hearing ability has severely decreased." The Board notes that the Veteran was not service connected for hearing loss disability in 2005 and 2006, as such had been previously denied. Thus, while the notification that the Veteran's hearing acuity had decreased could have been informal claim for an increase in evaluation if the Veteran was service connected for hearing loss disability, it is not an informal claim for entitlement to service connection. Moreover, if the Veteran's claim had been previously denied based on a finding that he did not have a current hearing loss disability for VA purposes, the statements as to "severe" hearing loss and the use of hearing aids, could have been an informal claim to reopen the previously denied claim. However, in the Veteran's claim, such a situation is not present. The Veteran's claim for entitlement to service connection for bilateral hearing loss disability was denied in 1988 due to a lack of continuity of symtomatology and/or a clinical nexus opinion relating his disability to service. Importantly, the Veteran had a hearing loss disability for VA purposes in 1988. The 2005 and 2006 statements as to a worsening of hearing were made in relation to a claim for specially adapted housing. As noted above, informal claims must identify the benefit sought. 38 C.F.R. § 3.155 (2011). In no way did the Veteran's son indicate that the Veteran's hearing loss may be related to active service, that there was new and material evidence to reopen the previously denied claim, or that he was filing a new claim for entitlement to service connection for bilateral hearing loss disability. In a statement received by VA in January 2009, the Veteran stated that he has been wearing hearing aids since 2003. Again, the severity of the Veteran's hearing loss disability was not an issue in the claim for entitlement to service connection. The mere fact that the Veteran's hearing loss disability increased in severity since the 1988 RO denial, and he was wearing hearing aids in 2003, is not sufficient to form an informal claim to reopen a previously denied claim which was denied on the basis of a lack of continuity of symptomatology and a clinical nexus opinion. The Veteran has not alleged that, subsequent to the 1988 RO denial and until the March 2008 VA examination report, the VA was in receipt of any clinical opinion or additional evidence of continuity of symptomatology which indicated that the Veteran's bilateral hearing loss disability was causally related to service. The Veteran avers that because he is now service connected for bilateral hearing loss disability, and because he has had the disability since 1988, he should be granted an effective date from 1988; this is not the law. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §§ 3.400, 3.400(b)(2) (2011). The earliest clinical evidence of record that the Veteran's bilateral hearing loss disability is as likely as not causally related to active service is the March 2008 VA examination report. The effective date for an award of disability compensation based on direct service connection is the date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Based on the evidence noted above, the Board finds that there was no formal or informal claim to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss disability prior to July 12, 2007. Therefore, an effective date for the award of service connection earlier than July 12, 2007 is not warranted. The Board finds the preponderance of the evidence is against entitlement to an effective date earlier than July 12, 2007 for the award of service connection for bilateral hearing loss disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to an effective date earlier than July 12, 2007 for service connection for bilateral hearing loss disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs