Citation Nr: 1321091 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 13-09 052 ) 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 13, 2009, for the award of service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1945 to December 1949. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which awarded service connection for bilateral hearing loss and assigned a 40 percent evaluation, effective April 13, 2009. 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. The Veteran filed his original claim for hearing loss on November 19, 1992, which was denied by rating decisions in February 1993 and December 1993; the Veteran appealed the decision to deny his claim and a statement of the case was issued in February 1994; the Veteran did not perfect his appeal. 2. The Veteran filed a claim for left ear hearing loss in April 1997; the Veteran was asked to submit evidence in support of his claim in August 1997, which he did not; the claim was denied by decision dated in December 1997; the Veteran was notified of his appellate rights and he did not appeal the decision 3. The RO received the Veteran's request to reopen a claim of entitlement to service connection for bilateral hearing loss on April 13, 2009. CONCLUSION OF LAW The legal requirements for an effective date prior to April 13, 2009, for a grant of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.109, 3.159, 3.400(r) (2012); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letters dated in January 2010 and June 2010. This appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection for bilateral hearing loss. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, which he declined. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information. 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 will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each 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). The Veteran has contended that he is entitled to an earlier effective date for the grant of service connection for bilateral hearing loss. Specifically, he asserts that the award should be made effective from November 1992, the date he filed his original claim for benefits. The Board notes that he additionally argued for a February 1993 effective date, claiming that was when he filed his original claim; however, as indicated above, the original claim for benefits was in November 1992. According to VA law, "[p]revious determinations which are final and binding ... will be accepted as correct in the absence of clear and unmistakable error (CUE)." See 38 C.F.R. § 3.105(a). A claim for CUE has not been filed with respect to the 1993 rating decisions. The Board has thoroughly reviewed the Veteran's claims file and concludes that in light of the evidence of record and procedural history, the Veteran's claim for an effective date prior to April 13, 2009, for a grant of service connection for bilateral hearing loss must be denied. A date earlier than April 13, 2009, is inconsistent with rules and regulations implemented by Congress concerning effective dates for award of compensation. Disability compensation is awarded for direct service connection, when an original claim is filed the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). In the instant case, the Veteran separated from service in December 1949. He did not file a claim for hearing loss within the one-year time frame from separation from service. The Veteran filed his original claim for benefits on November 19, 1992, more than 40 years after his separation from service. Thus, disability compensation is awarded for direct service connection on the date of receipt of claim or date entitlement arose, whichever is later. Id. The claim was denied by rating decisions in February 1993 and December 1993 on the basis that bilateral hearing loss was not incurred in or aggravated during service (February 1993) or secondary to the service-connected perforation of the right tympanic membrane (December 1993). The Veteran did appeal the decisions and a statement of the case was issued in February 1994; however, the Veteran did not perfect his appeal and the decisions became final. 38 C.F.R. § 21.302(b). The Veteran filed a claim for left ear hearing loss in April 1997. In August 1997, the RO notified the Veteran that his claim had been previously denied and that in order to reopen his claim he must submit evidence not previously considered that would tend to support his claim. The Veteran did not submit any additional evidence in support of his claim. The claim was denied by decision dated in December 1997. The Board acknowledges that hearing loss was not specifically listed in the notice, the RO referred to the "disability or disabilities for which your recent [claim] was filed" and their request for evidence in support of his claim in the August 1997 letter. VA Form, 4107, Notice of Procedural and Appellate Rights, was attached. The Veteran did not appeal the denial of his claim within the year following the December 1997 letter and thus, the December 1997 decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. In fact, there was no further communication from the Veteran until the RO received the Veteran's request to reopen a claim of entitlement to service connection for bilateral hearing loss on April 13, 2009. In June 2009, the Veteran was notified that his claim for bilateral hearing loss was previously denied on the basis that there was no evidence that the disability was incurred in or aggravated by service and no evidence of an etiological relationship between his service-connected perforation of the right tympanic membrane and bilateral hearing loss. He was asked to submit new and material evidence relating to this fact. In August 2009, the RO determined that the Veteran did not submit new and material evidence to support his claim of service connection for bilateral hearing loss, i.e. evidence of hearing loss in service, including military noise exposure, or within one-year of his discharge from service. In response to the letter, the Veteran submitted a December 2009 statement from Dr. DAJ. Dr. DAJ opined hearing loss was more than likely caused by a combination of noise exposure as well as the tympanic membrane perforations, particularly the right ear. The Veteran was afforded a VA examination in June 2010. The examiner opined hearing loss was at least as likely as not due to a combination of tympanic membrane perforation and sensorineural hearing loss. The RO awarded service connection in August 2010. The award was based on a concession of noise exposure in service and the favorable nexus opinion linking his bilateral hearing loss to the events in service. A 40 percent evaluation was made effective from April 13, 2009, the date of receipt of the reopened claim. The Board has carefully reviewed the record to determine whether there is any other communication or record which may be interpreted as a claim for benefits. See Servello v. Derwinski, 3 Vet. App. 196 (1992) [the Board must look at any communication that can be interpreted as a claim, formal or informal, for VA benefits]. The evidence demonstrates that between 1997 and 2009 the Veteran did not submit any claim, either formal or informal, for service connection for hearing loss. The Veteran does not contend that he filed a specific claim for service connection during this period, and the Board has not identified any communication which could be reasonably interpreted as such. Based on the aforementioned, the Veteran does not satisfy the threshold legal eligibility requirements for an earlier effective date sought in this appeal. Entitlement to an effective date earlier than April 13, 2009, for the grant of service connection for bilateral hearing loss is precluded as a matter of law. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400; see also Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim should be denied due to a lack of legal merit). ORDER Entitlement to an effective date prior to April 13, 2009, for the award of service connection for bilateral hearing loss is not warranted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs