Citation Nr: 1320445 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 12-33 468A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an effective date prior to December 29, 2011 for an award of service connection for bilateral hearing loss. 2. Entitlement to an effective date prior to December 29, 2011 for an award of service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1953 to January 1955. He had subsequent service in the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Virtual VA electronic claims file has been reviewed; a review of the documents reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note this appeal has been 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. On July 14, 1993, the Veteran filed a claim for entitlement to service connection for bilateral hearing loss and tinnitus, which was denied by the RO in November 1993. The Veteran filed a timely notice of disagreement with the November 1993 rating decision and perfected his appeal in a timely manner following a statement of the case. 2. Entitlement to service connection for bilateral hearing loss and tinnitus was granted in an April 2012 Board decision and the appellant was assigned an effective date of December 29, 2011. 3. The Veteran's entitlement to service connection arose following VA examination on February 7, 2012, i.e., the first date evidence was presented showing competent, probative medical evidence connecting his bilateral hearing loss and tinnitus to service. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to December 29, 2011 for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.104, 3.303, 3.400, 3.500, 20.202, 20.302 (2012). 2. The criteria for an effective date prior to December 29, 2011 for the award of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.104, 3.303, 3.400, 3.500, 20.202, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act In the instant case, the Veteran is challenging the effective date assigned following the grant of service connection. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because service connection has been granted in the instant case, further notice pertaining to the Veteran's claim of entitlement to earlier effective dates is not required. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims. Currently, there is no evidence that additional records have yet to be requested or any other development is in order. Moreover, there is no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. The Board has reviewed all of the evidence in the Veteran's claims file. 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 Veteran 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 Veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Laws and Regulations The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of 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. When a claim is received within one year after separation from service, the effective date will be the day following separation from active service. Id. Where a claim is reopened after a final disallowance, the effective date with be the date of the receipt of the claim or the date the entitlement arose, whichever is later. Id. A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 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 of entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2012). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). The applicable statutory and regulatory provisions require that VA look to all communications from the appellant, which may be interpreted as applications or claims-formal and informal-for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2012); see Servello v. Derwinski, 3 Vet. App. 196 (1992). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Rating decisions are final based on the evidence of record at the time of the decision. 38 U.S.C.A. § 7105. When a claim is denied in a rating decision, and the claimant fails to timely perfect an appeal of that decision in the manner set forth in 38 U.S.C.A. § 7105(b)(1), that rating decision is final and the claim may not thereafter be reopened or allowed, except upon the submission of new and material evidence or a showing that the prior final decision contained clear and unmistakable error. See 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.105, 3.156 (2012). A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. If several issues were addressed previously, the substantive appeal should indicate which issues are being appealed. The substantive appeal should also set out specific arguments relating to errors of fact or law. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error. See 38 C.F.R. § 20.202. Except in the case of simultaneously contested claims, a substantive appeal must be filed within 60 days from the date that the statement of the case is mailed to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed. 38 C.F.R. § 20.302. Analysis The Veteran claims that he is entitled to an effective date prior to December 29, 2011 for the award of service connection for bilateral hearing loss and tinnitus. The Veteran first applied for entitlement to service connection for tinnitus and bilateral hearing loss in July 1993. That claim was denied in November 1993. The Veteran submitted a new claim for entitlement to service connection for tinnitus and bilateral hearing loss in December 2011. The Veteran's claims were considered reopened and granted in an April 2012 rating decision. The Veteran now alleges that he is entitled to an effective date of July 14, 1993, the date he first submitted claims for entitlement to service connection for hearing loss and tinnitus. As noted, the Veteran's July 1993 claims of entitlement to service connection for tinnitus and bilateral hearing loss were denied in a November 1993 rating decision. Following the submission of his December 1994 notice of disagreement and request for an RO hearing, the Veteran was issued to a statement of the case in February 1995. See 38 C.F.R. § 3.103(f). This notice informed the Veteran of the period in which an appeal must be initiated and perfected. Id. The Veteran had a hearing at the RO in March 1995. During this hearing, the Veteran explained why he believed the RO's November 1993 findings to be incorrect. Although the Veteran never subsequently submitted a formal Form 9 substantive appeal in response to the February 1995 statement of the case, the Board finds that the Veteran made clear his intention to contest the RO's decision in his March 1995 hearing. Therefore the transcript of this hearing serves as sufficient to perfect the appeal of the November 1993 decision in lieu of a formal Form 9. See 38 C.F.R. § 20.202. As the Veteran had successfully perfected his appeal in March 1995, the July 1993 claim remains pending and the November 1993 rating decision is not final. See 38 C.F.R. §§ 3.104, 3.160(c) ("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated"); see also Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007) ("[A] claim remains pending-even for years-if the Secretary fails to act on a claim before him."). Therefore, the current appeals period before the Board encompasses July 1993 to the present. In light of the foregoing, the question in this case turns on the date at which entitlement to service connection for bilateral hearing loss and tinnitus arose or the date the claim was received. The appropriate date is the latter of these. See 38 C.F.R. § 3.400. The Veteran claims that he first experienced hearing loss and tinnitus while in the service, due to frequent exposure to acoustic trauma from firearms during basic training and while serving in Korea. His DD Form 214 shows that he served in an infantry regiment headquarters company and received the Korean Service Medal. The service treatment records from his active duty service are silent for any complaints relating to hearing loss or tinnitus. The Veteran scored 15 out of 15 on a whisper voice hearing tests during both his November 1952 entrance examination his January 1955 separation examination. At his March 1993 RO hearing, the Veteran explained that he had primarily been exposed to acoustic trauma during his basic training and Non-Commissioned Officer training. He stated that he had ringing in his ears while he was serving in Korea, but that it did not become serious or bothersome until later in his life. He first became aware of having high frequency hearing loss when he had audiometric testing performed while applying to Officer Candidate School in approximately 1957. He reported that he now had tinnitus quite frequently and that his high frequency hearing loss prevented him from hearing high pitched sounds, such as beepers. The Veteran also served in the National Guard following active duty service. An April 1960 National Guard examination shows a high frequency hearing loss of 45 decibels in the right ear and 50 decibels in the left ear at 4000 Hertz. A July 1966 examination shows high frequency hearing loss of 55 decibels at 3000 Hertz and 60 decibels at 4000 Hertz in the right ear, and at 55 decibels at 4000 Hertz in the left ear. At the time of the Veteran's November 1993 rating decision, the available record contained no contemporary evidence of a then current hearing loss or tinnitus. More significantly, there was no medical evidence linking either disability to service, to include due to alleged in-service acoustic trauma. The Veteran submitted a statement in October 1993 indicating that he had not been receiving any medical treatment for hearing loss or tinnitus. VA treatment records show that the appellant first began receiving treatment for hearing loss in September 2003. At his initial audiological evaluation, he was found to have hearing within normal limits through 1,500 Hertz followed by moderately severe to severe sensorineural hearing loss in the right hear and hearing within normal limits through 750 Hertz followed by mild to severe sensorineural hearing loss at higher levels in the left ear. Speech audiometry testing revealed speech discrimination ability of 64 percent in the right ear and 88 percent in the left ear. The Veteran also attended audiological evaluations in March 2009 and July 2011, which similarly showed mild to severe hearing loss bilaterally at frequencies above 1000 Hertz and moderate difficulty in speech discrimination testing. None of these audiologists addressed the etiology of the Veteran's tinnitus and hearing loss or their relationship to his service. The Veteran was afforded a VA examination on February 7, 2012. Audiometric testing revealed a hearing loss for VA purposes under 38 C.F.R. § 3.385. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and opined that it was at least as likely as not related to service due to the appellant's reports of acoustic trauma while serving in the infantry and the evidence of hearing loss existing since 1960. The examiner also found that the Veteran's tinnitus was at least as likely as not related to his service because he reported having tinnitus during service and had no history of significant noise exposure outside of military service. Following the receipt of that opinion the current effective date was assigned. Based on the evidence above, the Board finds no basis that would warrant an effective date for service connection for bilateral hearing loss or tinnitus prior to December 29, 2011. Although the Veteran's July 1993 claim has been pending since the date of that claim, VA must assign an effective date that is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Entitlement to service connection arises when there is medical evidence of a current disability, evidence of in-service occurrence or aggravation of a disease or injury, and competent evidence of a nexus between an in-service injury or disease and the current disability; only when these elements are met may entitlement to service connection be granted. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In the instant case, while the Veteran may have had hearing loss and tinnitus disabilities prior to the February 2012 VA examination, no competent evidence existed prior to that time demonstrating that a relationship between those disabilities and service. Thus, entitlement to a grant of service connection had not yet arisen. See Henderson v. Shinseki, 2013 WL 1195288 at *5 (Vet.App. March 25, 2013). Only from the date of the February 2012 VA examination had such a nexus been provided by competent medical evidence, and from them on entitlement to service connection for bilateral hearing loss and tinnitus could be granted. There was no competent, probative evidence indicating that the Veteran's bilateral hearing loss and tinnitus are related to his service prior to February 2012. To the extent the Veteran asserted in his July 1993 claim and March 1995 RO hearing that he believed that his bilateral hearing loss and tinnitus were caused by his in-service noise exposure the Board does not find this to be a competent medical opinion with any probative value. While the appellant is competent to report difficulty hearing and a history of ringing in the ears, there is no indication that he has any specialized knowledge in audiological disorders. Hence, as a layperson, he is not competent to provide a medical opinion on the etiology of either hearing loss or tinnitus. The question of whether hearing loss or tinnitus arising years after significant noise exposure is due to that prior noise exposure requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, a qualified medical opinion is necessary to provide probative evidence that can be considered when evaluating whether or not a disability has a nexus to service. The Board is bound by applicable regulations regarding when an effective date may be assigned. In this case, the Board finds that no competent and probative evidence existed to show that the Veteran's bilateral hearing loss and tinnitus had a relationship to service until the February 7, 2012 VA examination report which provided such an opinion. As this is after the date currently challenged, there is no basis by which the Board can assign, for either disability, an effective date earlier than December 29, 2011, the date that is currently assigned. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an effective date prior to December 29, 2011 for an award of service connection for bilateral hearing loss is denied. Entitlement to an effective date prior to December 29, 2011 for an award of service connection for tinnitus is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs