Citation Nr: 1304663 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 12-11 332A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to April 21, 2009, for the grant of service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from January 1943 to February 1946 and from June 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a November 2012 hearing sitting at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At the November 2012 hearing, the Veteran submitted additional evidence, accompanied by a waiver of his right to have the RO review this evidence in the first instance. Therefore, remand for review of this evidence by the RO is not required prior to appellate adjudication. 38 C.F.R. § 20.1304(c) (2012). The appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The Veteran's March 2004 original claim for service connection for bilateral hearing loss was denied in a December 2004 rating decision; review of the record does not reveal that the Veteran indicated disagreement with, or submitted medical documentation or lay statements constituting new and material evidence pertinent to, that denial within the one-year appeal period. 2. The Veteran's request to reopen his claim for service connection for bilateral hearing loss was received by VA on April 21, 2009. CONCLUSIONS OF LAW 1. The December 2004 rating decision, which denied service connection for bilateral hearing loss, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012). 2. The criteria for an effective date prior to April 21, 2009, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A June 2009 letter satisfied the duty to notify provisions with respect to the Veteran's claim to reopen the issue of entitlement to service connation for bilateral hearing loss. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Kent v. Nicholson, 20 Vet. App. 1 (2006). Once a claim for service connection has been substantiated, the filing of a notice of disagreement does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to notice is non-prejudicial. See id.; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after August 29, 2000, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to any downstream elements). This is especially the case as the June 2009 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration, only benefits awarded on the basis of age. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The December 2009 and October 2011 VA examinations were adequate for rating purposes; each examination inquired as to the Veteran's situations of greatest hearing difficulty, completed audiometric testing, and provided a nexus opinion as to the relationship between the Veteran's hearing loss and his military service. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Additionally, all the evidence in the Veteran's claims file, to include both the paper and Virtual VA file, has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. The Veteran must not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). There is no indication in the record that any additional evidence, relevant to the issues adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis The Veteran's original claim for service connection for bilateral hearing loss was denied in an unappealed December 2004 rating decision. The Veteran filed a request to reopen that claim in April 2009. Service connection for hearing loss was granted in a January 2010 rating decision, effective April 21, 2009. The Veteran appealed the effective date assigned. He asserted in his January 2010 notice of disagreement and May 2012 substantive appeal, that the effective date of the grant of service connection should be in March 2004, when his original claim for service connection for bilateral hearing loss was received by VA. He asserted in his November 2012 Board hearing testimony that the effective date should be back to 1945, when he was separated from his first period of service; he argued that he already had hearing loss as of that date. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2012). Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2) (2012). However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a veteran shall be the day following the date of discharge or release. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2) (2012); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). Unless specifically provided otherwise, 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 therefor." 38 U.S.C.A. § 5110(a) (West 2002). The implementing regulation states that the effective date of an evaluation and an award of compensation based on a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(r) (2012). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West Supp. 2012); 38 C.F.R. § 3.151(a) (2012). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012). Any communication or action, indicating an 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 generis may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2012). The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As noted above, the Veteran's original claim for service connection for bilateral hearing loss was received by VA in March 2004. That claim was denied in a December 2004 rating decision. Although the RO conceded that the Veteran had acoustic trauma in service as a radio operator and aircraft mechanic, it was noted that there was no medical evidence linking his current hearing loss to service. Review of the record does not reveal that the Veteran disagreed with that decision, or submitted competent evidence constituting new and material evidence pertinent to the December 2004 denial within the one-year appeal period. Accordingly, the December 2004 decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012). The Veteran subsequently filed a claim to reopen the issue of entitlement to service connection for bilateral hearing loss in April 2009. Accompanying his claim was a November 2005 VA audiology consult reflecting a diagnosis of bilateral hearing loss, and stating the opinion that based on the Veteran's reported history of military noise exposure, it was at least as likely as not that the Veteran's hearing loss began as a result of military noise exposure. Following a December 2009 VA examination which affirmed the nexus opinion, a January 2010 rating decision granted service connection for bilateral hearing loss, effective April 21, 2009, the date the claim to reopen was filed. There is no correspondence in the claims file, or any other document which could be considered correspondence or a claim, received by the RO after the December 2004 rating decision, and prior to the Veteran's April 21, 2009 claim to reopen. Thus, the proper date of claim is April 21, 2009. 38 C.F.R. § 3.400(r). The Veteran argues that his hearing loss existed at the time of his discharge from his first period of service, and therefore, his effective date should go back to 1945 when he was separated from his first period of service. Such contention is not supported by the Veteran's service treatment records, but regardless, the law establishes that the effective date will be the date of claim or date entitlement arose, whichever is later. 38 C.F.R. § 5110 (emphasis added). Thus, the presence of hearing loss prior to the date he filed his claim cannot establish an earlier effective date. The Veteran also argues that the effective date should go back to the date he filed his original claim for service connection, March 17, 2004. That claim was denied in a December 2004 rating decision, which indicated that there was evidence of a current disability and acoustic trauma in service, but no evidence linking his current hearing loss to service. He did not appeal that decision and it became final. There was no evidence or correspondence received within one year of that decision such that the effective date can relate back to that original claim. 38 C.F.R. § 3.156(b). Indeed, the first evidence concerning the missing element needed to establish service connection (a nexus) was submitted with the Veteran's claim to reopen. In this regard, in April 2009, the Veteran submitted a VA audiology report dated in November 2005 linking his hearing loss to service. The Board acknowledges this VA treatment report is dated in November 2005, within one year of the December 2004 rating decision. The Board notes that while VA treatment records may in certain circumstances be accepted as an informal claim for benefits pursuant to 38 C.F.R. § 3.157, such regulation is not applicable in this case. Specifically, that regulation provides that once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, the date of VA report of examination or hospitalization may be accepted as the date of receipt of a claim for increase or to reopen. 38 C.F.R. § 3.157(b) (2012). In this case, however, service connection had not been previously established for hearing loss at the time the Veteran presented for his annual audiologic evaluation in 2005. Thus, the November 2005 VA treatment record cannot service as a claim to reopen and the provisions of section 3.157(b) are not applicable to the instant case. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed.Cir.2006); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992) ("§ 3.157(b) . . . provides that the date of an outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as the date of receipt of an informal claim for increased benefits, or an informal claim to reopen, with respect to disabilities for which service connection has been granted"); see also Brannon v. West, 12 Vet. App. 32, 35 (1998) ("The mere presence of the medical evidence does not establish an intent on the part of the [claimant] to seek secondary service connection. . . ."). Moreover, there is nothing contained in the November 2005 outpatient report suggesting the Veteran believed he was filing a claim for compensation with the clinician at that time or indicating an intent to claim compensation at that time. See 38 C.F.R. § 3.1(p) (2012). In sum, the Veteran's initial claim for service connection was received many years following his separation from service, and was denied in a final rating decision in December 2004. The next correspondence in the record indicating an intent to claim service connection was received by VA on April 21, 2009. As such, the proper effective date is April 21, 2009, the date the claim to reopen was received. See 38 C.F.R. § 3.400. Accordingly, an effective date prior to April 21, 2009 for the award of service connection for bilateral hearing loss is not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an earlier effective date for the grant of service connection for bilateral hearing loss is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date prior to April 21, 2009, for the grant of service connection for bilateral hearing loss is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs