Citation Nr: 1306401 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 11-00 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an effective date prior to March 24, 2010, for an award of a 10 percent evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and R.P. ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded a 10 percent evaluation for bilateral hearing loss, effective from March 24, 2010. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2012; a transcript of that hearing is associated with the claims file. During the January 2012 hearing, the Veteran clarified that he was satisfied with the 10 percent evaluation for hearing loss and was not appealing the evaluation, but rather limited his appeal to the effective date assigned for the rating. The Board therefore will address only the effective date claim. FINDINGS OF FACT 1. By an October 2008 rating decision, service connection for hearing loss was granted, and a noncompensable rating was assigned. 2. There was no notice of disagreement or new and material evidence received within one year of the October 2008 rating decision. 3. A claim for increase was not received until March 24, 2010. CONCLUSION OF LAW The criteria establishing an effective date prior to March 24, 2010, for the award of a 10 percent disability evaluation for bilateral hearing loss have not been met. 38 C.F.R. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.157(b), 3.400(o), 20.201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). On March 24, 2010, the Veteran filed a claim for increase. When there is a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in March 2010 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Moreover, the effective date assigned in this case is a downstream issue associated with the increased evaluation claim and Courts have held that additional notice is not required in such cases. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, no further action is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a January 2012 hearing before the undersigned. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Unless specifically provided otherwise, the effective date of an award of compensation based on a claim for increased evaluation, is the date of receipt of claim or date entitlement arose, whichever is later. However, the earliest date as of which it is factually ascertainable that an increase in disability has occurred if claim is received with one year from such, otherwise date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o) (2012). In this case, the Veteran initially filed his claim for increased evaluation on March 24, 2010; such is the date assigned. The Veteran has not argued that there was any evidence in VA's possession within the one year prior to receipt of that claim which demonstrated a "factually ascertainable" increase in hearing loss symptomatology. The Board notes that all records within a year prior to March 24, 2010, do no pertain to the Veteran's hearing loss, but rather are relevant to a different claim. Accordingly, the Board finds that the receipt of claim date is the appropriate date to be assigned in this case, and the Veteran's claim must be denied. See Id.; see also 38 C.F.R. § 3.102 (2012). On appeal, the Veteran testified that he should be awarded an earlier effective date because his hearing loss is related to military service and that he filed and refiled several times, including in 1997 and 2008, for VA benefits relating to his bilateral hearing loss. The Veteran has not asserted that he in any way disagrees with those decisions other than his award of benefits from the May 2010 decision do not extend back to that time even though he filed for service connection and was awarded service connection. First, the Board finds that January 1997 and October 2008 rating decisions are considered final. (A January 1997 decision denied a claim of service connection, and the October 2008 decision granted service connection with a zero percent rating from July 13, 2007.) If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. See 38 C.F.R. §§ 3.156(b), 20.302; Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Furthermore, except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim. See 38 C.F.R. §§ 3.156(c), 20.1000(b). The Veteran was notified of those decisions in February 1997 and October 2008 letters, respectively. Within the one-year appeal periods following those decisions, no new and material evidence was received that would have triggered the requirement to reconsider those decisions. Specifically, following the January 1997 rating decision, no new evidence was associated with the claims file until the Veteran filed to reopen the claim on July 13, 2007. Following the October 2008 rating decision, the Board notes that the Veteran initiated a clear and unmistakable error (CUE) claim with respect to a claim of service connection for varicose veins. The correspondence and evidence received within the one year following the October 2008 rating decision pertained only to that claim, and is therefore not material to the Veteran's bilateral hearing loss claim. Therefore, the Board finds that the January 1997 and October 2008 rating decisions are final, and are not still pending claims which VA had a duty to reconsider due to receipt of new and material evidence within the appeal period. See 38 C.F.R. § 3.156(a), (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Moreover, the Board notes that no new service department records were associated with the claims file between the October 2008 and March 24, 2010, which would require consideration of the Veteran's claim on a de novo basis, nor would receipt of any service department records following October 2008 be relevant to the claim at bar because such records would be relevant to a service connection claim and not an increased evaluation claim, which is the type of claim initiated by the Veteran on March 24, 2010. See 38 C.F.R. § 3.156(c). Additionally, the Board has reviewed the record for correspondence that could be considered a notice of disagreement; the Board finds that no such correspondence was received within the one-year appeal periods following the January 1997 and October 2008 rating decisions. A notice of disagreement is a written communication from a claimant or his representative expressing dissatisfaction or disagreement with the adjudicative decision of the agency of original jurisdiction (AOJ), which is the RO in this case, and a desire to contest the result. 38 C.F.R. § 20.201 (2012). No special wording is required, but the Notice of Disagreement must be in terms that can be reasonably construed as disagreement with the determination and a desire for appellate review. Id. With regard to this case, the Board notes that all correspondence received within one year of the October 2008 rating decision was relevant to only the Veteran's varicose veins claim and does not mention or indicate disagreement with respect to his assigned disability evaluation or effective date for his bilateral hearing loss. The Board acknowledges that the Veteran filed for increased evaluation of his bilateral hearing loss in March 2010; however, such correspondence was received after expiration of the one-year appeal period following the October 2008 rating decision. Furthermore, that correspondence reads: . . . Enclosed you will find another hearing test from West Point Military Academy in New York. You mentioned that if my hearing had gotten worse to reapply for disability. It is quite evidence that my hearing has deteriorated quite rapidly since my last test which you have on file. Please open my case and present the hearing tests to whomever for review. From the text of the correspondence, it is clear that the Veteran's intention was to file for an increased evaluation for his hearing loss. The correspondence does not indicate any disagreement or dissatisfaction with the prior October 2008 rating decision, but rather indicated that his hearing had gotten worse and that he was reapplying for disability compensation on the basis of that worsening. Thus, because of the timing and wording, the Veteran's March 24, 2010 submission cannot be construed as a notice of disagreement that would have kept the October 2008 rating decision from becoming final. See 38 C.F.R. § 20.201. At his January 2012 hearing, the Veteran and his representative argued that an earlier effective date should be assigned because the government was in possession of records regarding his hearing loss; the Veteran was specifically referring to records of January 2010 hearing loss evaluation he received from West Point Military Academy through Tricare, which he submitted with his March 24, 2010, claim. A VA examination or treatment report, or records from the uniformed service which are then the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list, will be accepted as an informal claim for benefits once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157(b), (b)(1) (2012). The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of examination, treatment or hospital admission. See 38 C.F.R. § 3.157(b)(1). The provisions of 38 C.F.R. § 3.157(b)(3), however, make clear that any other government hospital not described by section (b)(1) will be awarded an effective date on the basis of date of receipt by VA. The Board acknowledges that the Veteran's hearing loss was already service connected at the time of the January 2010 treatment at West Point Military Academy through Tricare; therefore, if West Point Military Academy fits the type of institutions described by 38 C.F.R. § 3.157(b)(1), a date of claim can be affixed on that treatment date. Unfortunately, the Board notes that while West Point Military Academy is a federal government hospital which serves former retirees as well as current Armed Forces personnel, such records are not VA treatment or examination records. West Point Military Academy is an Armed Forces-run hospital, and is not a VA hospital. Further, there is no evidence in the record to demonstrate, and neither the Veteran nor his representative has asserted, that he was authorized by VA prior to the January 2010 treatment to use West Point Military Academy at VA's expense. Nor is there evidence that the Veteran ever applied to have VA pay for such after the fact. Thus, West Point Military Academy does not meet the criteria to be considered a VA facility such that 38 C.F.R. § 3.157(b)(1) would allow any such records to act as an informal claim for benefits. Moreover, it does not appear in evidence of record, and the Veteran has not asserted, that he was on the temporary disability retired list and that such January 2010 treatment was examination on which a grant of severance pay was based. The Veteran was separated from service well prior to January 2010. Instead, the date of receipt by VA of the January 2010 record was March 24, 2010, the same date VA received the Veteran's claim for increased evaluation, and the date already assigned for the award of the compensable rating. The Board must therefore find that the application of 38 C.F.R. § 3.157 does not allow for the award of an earlier effective date in this case. See 38 C.F.R. § 3.157(b). In summary, the January 1997 and October 2008 rating decisions are considered final, as there was no new and material evidence or a notice of disagreement received within one year of those rating decisions that would have kept those decisions from becoming final. Additionally, the Board has considered whether the January 2010 West Point treatment record can be considered an informal claim of benefits, and found that such was treatment provided by a non-VA facility that was not received prior to March 24, 2010. Accordingly, as the Veteran's claim for increased evaluation of his bilateral hearing loss was received on March 24, 2010, the appropriate and earliest possible effective date has already been assigned, and the Veteran's claim for an effective date prior to March 24, 2010, for the award of a 10 percent evaluation for his bilateral hearing loss must be denied. See 38 C.F.R. §§ 3.102, 3.105, 3.157(b), 3.400(o), 20.201. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran in this instance. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An effective date prior to March 24, 2010 for the award of a 10 percent evaluation for bilateral hearing loss is denied. ____________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs