Citation Nr: 1301020 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-38 424 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to an effective date earlier than April 30, 2001 for the grant of service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from December 1942 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the RO. In a December 2012 letter, the Veteran raised the issue of whether clear and unmistakable error had been committed in 1946, 1958 and 1972 rating decisions. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran's claim of service connection for bilateral hearing loss was denied by the RO in February 1946, December 1958 and January 1972. In April 2001, the Veteran petitioned to reopen his previously denied claim of service connection. The RO confirmed and continued the previous denial of service connection in a June 2002 rating decision. The Veteran appealed this decision and his claim was denied by the Board in April 2007. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2009 Memorandum Decision, the Court reversed the Board's denial of service connection for hearing loss and remanded the matter for a determination of the appropriate disability rating and effective date. In the December 2009 rating decision currently on appeal, the RO implemented the Court's decision and assigned a 50 percent disability rating for bilateral hearing loss, effective on April 30, 2001. The Veteran has disagreed with the assigned effective date. In general, 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 the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. However, the effective date of a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(q)(1)(ii). As an exception to these general rules, 38 C.F.R. § 3.156(c)(1) provides that a previously finally denied claim is to be reconsidered if relevant official service department records that existed and had not been associated with the claims file when the claim initially was decided are subsequently received and associated with the claims file. Since the claim is reconsidered rather than reopened, an award of compensation based all or in part on such relevant official service department records is effective on the date entitlement arose or the date the previously decided claim was received, whichever is later, or such other date as may be authorized by additional provisions applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). In other words, "an effective date as early as the date of the original claim up to the date of the claim to reopen" is authorized. Vigil v. Peake, 22 Vet.App. 63, 65 (2008). In the June 2009 Memorandum Decision, the Court stated that VA's attempts to locate records in support of the Veteran's claim "were seriously deficient." See the memorandum decision, page 4. It was noted that although the Veteran repeatedly provided very specific information on his in-service injury, VA did not make any attempt to utilize that information in searching for records beyond the Veteran's service treatment records. Id. In this capacity, the Board notes that the Veteran has consistently stated that he was treated for an ear fungus during service and hospitalized for a head injury which resulted in hearing loss. See, e.g., the April 2001 claim and the June 2005 statement. In his February 1946 claim, the Veteran stated that he was treated from December 1944 - February 1945 while stationed with the Special Tank Air Group #1 (STAG#1) NAAF Hospital at Mbanika in the Russell Islands. The Veteran also stated that he was treated for his hearing loss between February 1945 and June 1945 while stationed with the Patrol Air Transportation Service Unit (PATSU) 1-11 on Green Island. See also the November 1948 claim. In August 2005, the Veteran indicated that he was treated in February 1944 as an outpatient at a hospital or dispensary in Mbanika, Russell Islands while attached to STAG#1. In June 2006, the Veteran stated that his first experience with hearing loss "occurred in July - September 1944 while on the island of Mbanika." In an October 2011 statement, the Veteran claimed that he was treated from May 1944 to December 1944 for his in-service ear problems at Mbanika Island. In January 2012, the RO requested the United States Joint Services Records Research Center (JSRRC) (formerly known as the United States Armed Services Center for Unit Records Research (CURR)) conduct a search of morning reports of STAG 1, Lingathau, Mbanika from May 1944 to August 1944 for an ear condition, head injury or concussion. In response the JSRRC noted that there are no morning reports for the Navy. The RO also submitted a request for any inpatient clinical records for a fungal infection from May 1944 to September 1944 at Stag#1 base dispensary, Lingathau beach, Mbanika. The RO also requested any records of a head injury or concussion from May 1944 through September 1944 From the Patrol Air Transport Service Unit 3 at the Mbanika Island. There was no response to this records request. As the record indicates that the JSRRC has not responded to the RO's request for an in-service hospitalization records, the Board is unable to conclude that VA satisfied its duty to assist under 38 U.S.C. § 7104(a) (West 2002) (explaining that decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation). Moreover, the record does not indicate that the RO has requested the Veteran's treatment records from his time on Green Island. Therefore, on Remand, VA should attempt to obtain, and associate, these records with the Veteran's claims file. See 38 U.S.C.A. § 5103A(b) (West 2002). Accordingly, the case is being remanded to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. The RO should take all indicated action to contact the National Personnel Records Center (NPRC) and/or any other possible repository, and attempt to obtain records relating to the Veteran's claimed in-service hospitalization for a head injury and treatment for an ear fungus. This search should include hospitals and dispensaries in both Mbanika Island and Green Island during the dates the Veteran has identified. The dates noted above, along with the organization to which the Veteran was assigned, to include the company, battalion, regiment, etc., should be specified. Any available alternate sources of verification of such medical treatment, to include Surgeon General Office (SGO) reports, and/or sick call reports, should also be requested. An attempt should also be made to obtain the Veteran's service personnel records. If no records are available, that should be noted in the Veteran's VA claims folder. 2. After completing all indicated development, the RO should readjudicate the issue remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).