Citation Nr: 1327684 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-49 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an effective date earlier than April 10, 2008, for the grant of service connection for bilateral hearing loss. 2. Entitlement to an effective date earlier than April 10, 2008, for the grant of service connection for hallux limitus and degenerative changes, right foot. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The RO in Oakland, California, currently has jurisdiction of the claims. FINDINGS OF FACT 1. The Veteran filed an informal claim for service connection for bilateral hearing loss and a right foot condition that was received on April 10, 2008. 2. The Veteran filed a formal claim for service connection for bilateral hearing loss and a right foot condition that was received on August 20, 2009. 3. In a March 2010 rating decision, the RO granted service connection for bilateral hearing loss and hallux limitus and degenerative changes, right foot, effective August 20, 2009. 4. The effective date was subsequently amended to April 10, 2008, in a December 2010 rating decision. 5. The Veteran did not submit a claim for service connection prior to the date of receipt of his informal claim on April 10, 2008. 6. The Veteran's claim filed prior to April 10, 2008, was related to entitlement to a priority level higher than Priority Group 8c for purposes of basic eligibility for enrollment in the VA healthcare system. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 10, 2008, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2012). 2. The criteria for an effective date prior to April 10, 2008, for the grant of service connection for hallux limitus and degenerative changes, right foot, have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duty to Notify and the Duty to Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Once the underlying claim is granted, as here, further notice as to downstream questions, such as the disability rating and effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As to VA's duty to assist, the Veteran's service, VA and private treatment records have been obtained. VA examinations sufficient for adjudication purposes were provided to the Veteran in connection with his claims for service connection for bilateral hearing loss and a right foot condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board does not find that there is any outstanding evidence that should be associated with the claims folder and, therefore, no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). II. Earlier Effective Date Claims The Veteran filed an informal claim seeking entitlement to service connection for bilateral hearing loss and a right foot condition that was received by the RO on April 10, 2008. His formal claim for service connection was received on August 20, 2009. Service connection for bilateral hearing loss and hallux limitus and degenerative changes, right foot, was granted in a March 2010 rating decision, which assigned a noncompensable rating for bilateral hearing loss and a 10 percent rating for hallux limitus and degenerative changes, right foot, both effective August 20, 2009. The effective date was subsequently amended to April 10, 2008, by a December 2010 rating decision. The Veteran contends that he is entitled to an effective date prior to April 10, 2008, for the grant of service connection for bilateral hearing loss and hallux limitus and degenerative changes, right foot. He asserts that a May 11, 2004, effective date is warranted because he received correspondence from VA clearly stating his request for disability dating back to May 2004. The Veteran is asserting his request for a change in priority for purposes of basic eligibility for enrollment in VA's healthcare system should have been treated as a claim for service connection disability. In support of his claim, the Veteran cited a May 1, 2004, Letter of Appeal "notice of disagreement." He also referred to a June 9, 2004, acknowledgement of his appeal, a September 7, 2004, VA Form 9 in June 28, 2004, an October 2005 Board hearing, a January 2007 re-acknowledgment of appeal, and follow up requests that the Veteran subsequently made to VA in April 2010 and December 2010. In addition to the June 2004 VA Form 9, in which he discussed enrolling in priority 3 rather than priority 8 for purposes of basic eligibility for enrollment in VA's healthcare system, the Veteran also submitted additional paperwork, to include an incomplete June 2004 RO letter notifying him of VA's duties to notify and assist, and a January 2007 letter from the Board. Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2012). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). There is no indication that the Veteran submitted a claim for service connection, formal or informal, prior to the date of receipt of his informal claim for service connection on April 10, 2008. See 38 C.F.R. §§ 3.151, 3.155 (2012). No correspondence was received from the Veteran during this time period that indicated an intent to apply for service connection for bilateral hearing loss or a right foot disability, and the Veteran does not contend otherwise. Rather, it appears that the Veteran is confusing a claim for entitlement to basic eligibility for enrollment in the VA healthcare system with the claim for service connection that is the subject of this appeal. The claim related to enrollment in the VA healthcare system would have been handled by the Veterans Affairs Medical Center (VAMC) through the Veterans Health Administration, not by the RO through the Veterans Benefits Administration. Any documents related to this claim would be associated with a claims folder in the possession of the VAMC, not in the claims folder managed by the RO and currently in the Board's possession. This was explained to the Veteran in the December 2010 statement of the case. The Board has reviewed the Veterans Appeals Control and Locator System (VACOLS) in an attempt to further clarify the situation, given the fact that any documents related to the claim for entitlement to basic eligibility for enrollment in the VA healthcare system are located in a claims folder in the possession of the VAMC. VACOLS reveals that the Veteran was notified of an adverse decision on July 24, 2003, that a notice of disagreement was filed on May 14, 2004, that a statement of the case was issued on June 9, 2004, and that the Veteran perfected an appeal on June 28, 2004. That appeal, which was adjudicated as entitlement to a priority level higher than Priority Group 8c for purposes of basic eligibility for enrollment in the VA healthcare system, was dismissed by the Board on April 19, 2011. According to the Board decision, the dismissal was based on a March 2011 statement in which the Veteran indicated his desire to withdraw his appeal. In the April 2011 decision, the Board acknowledged that VA failed to promptly send that appeal to the Board for adjudication, since a Board hearing was held in October 2005 but, for unknown reasons, the case was not referred for Board review until April 2011, and that there were pending claims for service connection. The Board informed the Veteran that the pending claims for service connection would be processed by the RO and not by the VAMC. The Board also informed the Veteran that if service connection was granted, his eligibility category for treatment would likely change and that he should reapply for VA treatment at that time. As noted above, the effective date for a grant of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. As such, the earliest possible effective date for the grant of the claim, which, based on the procedural history as outlined in detail above, is April 10, 2008, the date on which the Veteran's informal claim for service connection was received. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, as explained above, the preponderance of the evidence is against the claim. Given the foregoing, the benefit of the doubt doctrine is not applicable and the claims for entitlement to effective dates prior to April 10, 2008, for the grant of service connection for bilateral hearing loss and hallux limitus and degenerative changes, right foot, is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date prior to April 10, 2008, for the grant of service connection for bilateral hearing loss, is denied. An effective date prior to April 10, 2008, for the grant of service connection for hallux limitus and degenerative changes, right foot, is denied ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs