Citation Nr: 1318065 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-37 183A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased disability rating for bilateral hearing loss. 2. Entitlement to an effective date earlier than February 26, 1998, for the assignment of a 10 percent disability rating for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from January 1970 to September 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied the Veteran's claims. The Board notes that in an April 2010 rating decision, the RO assigned a 10 percent rating for Veteran's bilateral hearing loss from March 21, 2008. However, a review of the record maintained in the Virtual VA paperless claims processing system shows that a December 2010 rating decision assigned a rating of 30 percent for bilateral hearing loss from March 21, 2008, and a June 2012 rating decision assigned a 40 percent rating from April 5, 2011. However, as is explained below, the appeal concerning the issue of entitlement to an increased disability rating for hearing loss has been withdrawn and no longer before the Board. The Board has limited its consideration accordingly and has characterized the issue on appeal as reflected on the title page. FINDINGS OF FACT 1. In May 2010, prior to the promulgation of the Board's decision in the appeal, the Veteran submitted a written statement indicating that he desired to withdraw his appeal for entitlement to an increased rating for bilateral hearing loss. 2. In an April 1972 rating decision, the RO granted service connection and assigned a noncompensable rating for deafness, sensorineural type, high frequencies, bilateral with tinnitus, effective September 23, 1971. 3. The Veteran did not file a notice of disagreement with the assigned effective date or submit additional relevant evidence within one year of the letter notifying him of the April 1972 rating decision; and the effective date became final. 4. On November 15, 1978, the RO received the Veteran's claim for an increased rating for tinnitus. 5. On November 22, 1978, the RO sent correspondence to the Veteran requesting additional medical evidence before his claim for an increased rating for tinnitus could be considered. This letter notified the Veteran that his claim would be reconsidered when medical evidence of his present condition was received; the Veteran never submitted the requested medical evidence or responded in any way to the RO's November 1978 letter, so his claim was abandoned. 6. There is no communication of record after the November 1978 abandoned claim and the February 26, 1999, claim for an increased rating for tinnitus. 7. In a March 2000 rating decision, the RO granted entitlement to service connection for tinnitus and assigned a 10 percent rating, effective February 26, 1999; the Veteran did not file a notice of disagreement with the assigned effective date or submit additional relevant evidence within one year of the letter notifying him of the March 2000 rating decision; and the effective date became final. 8. In October 2007, the RO received the Veteran's claim for an effective date earlier than February 26, 1999, for the grant of service connection for tinnitus. 9. By a July 2008 rating decision, the RO found that the March 2000 rating decision involved clear and unmistakable error in the effective date assigned, and assigned an earlier effective date of February 26, 1998, for the grant of service connection for tinnitus and the assignment of a 10 percent disability rating. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to an increased disability rating for bilateral hearing loss, have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for an effective date prior to February 26, 1998, for the assignment of a 10 percent disability rating for tinnitus, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114(a)(3) (2012), 3.158(a) (1978 and 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & to Assist Before addressing the merits of the issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. With respect to the Veteran's increased rating claim, as the claim is being dismissed, any issues regarding VCAA notice are irrelevant. With respect to the Veteran's earlier effective date claim, prior to the initial denial of the present claim, the RO advised the Veteran of what the evidence must show to establish entitlement to an earlier effective date in a notice letter sent in February 2008. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim. The RO further described what evidence that the Veteran should provide in support of his claim. Moreover, the RO explained how VA determines the disability rating and effective date of a disability once service connection has been established, which satisfied Dingess notice requirements. Under the VCAA, VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, VA obtained the Veteran's STRs. Also on file are pertinent outpatient treatment records and the reports of pertinent VA examinations. The file also contains statements and contentions made by the Veteran and his representative. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Withdrawal, Increased Rating Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or his authorized representative. 38 C.F.R. § 20.204. In the present case, in a statement received by the Board in May 2010, the Veteran stated that he wished to withdraw his appeal for entitlement to an increased disability rating for bilateral hearing loss. Hence, there remains no allegation of error of fact or law for appellate consideration in regard to this claim. Earlier Effective Date Claim In the absence of clear and unmistakable error (CUE), a final RO decision is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 7105, 7111 (West 2002). If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C.A. § 5109A . There is no such procedure as a freestanding challenge to the finality of a VA decision. See DiCarlo v. Nicholson, 20 Vet. App. 52 (2006). Further, after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Except as otherwise provided, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012). The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2) (2012). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date; otherwise, the effective date will be the date of receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(2) (West 2002); 38 C.F.R. § 3.400(o) (2012). When evidence requested in connection with an original claim or a claim for increase is not furnished within 1 year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a) (1978 and 2012). A decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and an appellant can only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. Rudd, 20 Vet. App. at 299. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114. If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). The intent of these provisions was to compensate claimants who might have been unaware or less diligent in filing a claim for benefits that they were otherwise entitled to by enactment of liberalizing legislation. See McCay v. Brown, 106 F.3d 1577 (Fed. Cir. 1997). The Veteran seeks an effective date of March 1976, the date of the liberalizing law that allowed a compensable rating for tinnitus, for the assignment of a 10 percent disability rating for tinnitus. Historically, the Veteran filed an initial claim for service connection for bilateral loss which was received by VA on September 30, 1971. An April 1972 rating decision granted service connection for deafness, sensorineural type, high frequencies, bilateral with tinnitus and assigned a noncompensable rating effective September 23, 1971. In April 1972, the Veteran was provided with a letter that explained to him that he had one year to appeal this rating decision (meaning either the rating or the effective date assigned) or it would become final. As the Veteran did not appeal the decision and new and material evidence pertinent to the Veteran's claim was not received by VA or constructively in its possession within one year of the April 1972 rating decision, it became final. See 38 U.S.C.A. § 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. The regulation governing service connection for/rating of tinnitus was liberalized in March 1976, to include a compensable rating for persistent tinnitus resulting from acoustic trauma, in addition to previously compensable brain disease/head trauma or concussion. See 41 Fed. Reg. 11,291, 11,298 (Mar. 10, 1976) (altering rating code to provide a 10 percent disability for tinnitus that is the result of acoustic trauma). A claim for an increased rating for tinnitus was received by VA on November 15, 1978. The Veteran filed a claim for "a compensable evaluation for tinnitus with bilateral hearing loss." He stated that, "It is felt that a compensable evaluation under Diagnostic Code 6260 [which pertains to recurrent tinnitus] is warranted." On November 22, 1978, the RO sent correspondence to the Veteran requesting additional medical evidence before his claim for an increased rating for tinnitus could be considered. This letter notified the Veteran that his claim would be reconsidered when medical evidence of his present condition was received. However, the record is negative for any response from the Veteran. The Board finds that the Veteran's November 1978 claim for an increased rating for tinnitus was abandoned. As previously stated, when evidence requested in connection with an original claim or a claim for increase is not furnished within 1 year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a) (1978 and 2012). In this case, the Veteran was requested to provide additional medical evidence in support of his increased rating claim before his claim would be considered, but he failed to provide the requested information. Since the Veteran never responded to the November 1978 letter, his claim was therefore abandoned. Id.; see also, Morris v. Derwinski, 1 Vet. App. 260, 265 (1991); Wamhoff v. Brown, 8 Vet. App. 517, 520-21 (1996) (noting that a claim is considered abandoned when a veteran does not furnish requested information within one year of the date of the request). After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, compensation based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158. No further correspondence was received from the Veteran until the claim for an increased rating on February 26, 1999. VA promulgated new regulations amending the rating criteria for diseases of the ear, effective June 10, 1999. See 64 Fed. Reg. 25,202-25,210 (codified at 38 C.F.R. pt. 4). The revised criteria removed the requirement that tinnitus be a symptom of either a head injury, a concussion or of acoustic trauma, and that it be persistent. In a March 2000 rating decision, the RO granted service connection for tinnitus with a 10 percent rating, effective February 26, 1999, the date of receipt of the Veteran's claim for an increased rating. The Veteran was notified of this decision, and his appellate rights, by letter dated June 2000. In May 2000, the Veteran submitted copies of STRs that were previously considered by the RO in support of a claim for an increased rating for hearing loss. As the Veteran did not appeal the decision and new and material evidence pertinent to the Veteran's claim was not received by VA or constructively in its possession within one year of the March 2000 rating decision, it became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. On October 12, 2007, the Veteran submitted a claim for an earlier effective date for his service-connected tinnitus. In a March 2008 statement, the Veteran requested a review of his claim for the effective date of service connection for tinnitus back to [March 10] 1976, the date of the change in the law allowing for a separate compensable rating for tinnitus. By a July 2008 decision, the RO found that the March 2000 rating decision involved clear and unmistakable error in the effective date assigned, and the RO found that the correct date for the grant of service connection for tinnitus (and the assignment of a 10 percent disability rating) should be February 26, 1998, pursuant to 38 C.F.R. § 3.114(a)(3). The RO found that the March 10, 1976 liberalizing law that allows for a separate compensable rating for tinnitus did not apply to the Veteran's claim because more than one year passed since the change in the liberalized law. The RO assigned an effective date of February 26, 1998, one year prior to the date of receipt of the February 1999 increased rating claim due to the liberalizing law. Because the Veteran failed to respond to the November 1978 letter asking him to provide additional medical evidence in support of his claim, the November 1978 claim is considered abandoned. 38 C.F.R. § 3.158. Therefore, the November 1978 claim cannot be the basis for an effective date earlier than February 26, 1998. Pursuant to 38 C.F.R. § 3.114 (a)(3), February 26, 1998 stands as the earliest possible date that the RO could have assigned for the assignment of a 10 percent disability rating for tinnitus, given that there are no other correspondences prior to February 26, 1999 (but after the November 1978 abandoned claim) that could reasonably be construed as constituting a claim for an increased rating for tinnitus. The Board has considered the Veteran contentions as stated in a March 2008 statement. First, the Veteran essentially contended that he was not advised that he had one year to appeal the April 1972 rating decision that granted service connection for bilateral hearing loss and tinnitus pursuant to his September 1971 hearing loss claim. However, a review of the claims file shows that he was provided notice of his appellate rights in an April 1972 letter. Second, the Veteran alleged that he did not receive counsel concerning his hearing loss and tinnitus claims until the 1990s at which time he was represented by the State of New Jersey Department of Military and Veterans Affairs and filed the February 1999 claim for an increased rating for tinnitus. Nonetheless, his claimed lack of awareness does not provide a legal basis for entitlement. Although the Veteran may have been unaware of the requirement that he had within one year from the effective date of the March 1976 liberalizing regulation regarding tinnitus to file a claim for benefits, the absence of such knowledge cannot serve as the basis for an award of benefits. Morris v. Derwinski, 1 Vet. App. 260 (1991), Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947); Velez v. West, 11 Vet. App. 148 (1998). Persons dealing with the Government are charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, at 265. As such, a claim of ignorance of the law in not submitting an increased rating claim for tinnitus, or requesting a review of his case within one year of the March 1976 regulation is without merit. Finally, the Veteran submitted a copy of a 1992 Board decision that granted an earlier effective date of February 1973 for the grant of service connection for tinnitus for the left ear, for another Veteran. The current appellant has submitted the decision, apparently, for precedential effect. However, Board decisions are not precedential and the undersigned is not bound by the determination of another Judge in another case for another Veteran, based on other evidence. 38 C.F.R. § 20.1303 (2012). Moreover, as stated by the RO in the September 2009 SSOC, the issue in that case was entitlement to an earlier effective date for the grant of service connection for tinnitus. However, in this case, the current issue on appeal is whether or not the law requires the assignment of an effective date earlier than February 26, 1998, for a 10 percent disability rating for tinnitus. Accordingly, the 1992 Board decision is not pertinent to the Veteran's earlier effective date claim. Therefore, the Board must find that the Veteran does not meet the criteria for establishing an effective date prior to February 26, 1998 for the assignment of a separate 10 percent disability rating for tinnitus. There is no doubt of material facts to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). [Continued on Next Page] ORDER The appeal seeking entitlement to an increased disability rating for bilateral hearing loss is dismissed. An effective date prior to February 26, 1998, for the assignment of a 10 percent disability rating for tinnitus, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs