Citation Nr: 1328427	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  10-38 424	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in New York, New York


THE ISSUE

1. Entitlement to an effective date earlier than April 30, 
2001, for a grant of service connection for a bilateral 
hearing loss disability.

2. Whether there was clear and unmistakable error (CUE) in 
February 1946, December 1958 and January 1972 rating 
decisions that denied service connection for bilateral 
hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from December 1942 to 
February 1946. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a December 2009 rating decision 
issued by the RO.

The Board remanded the case to the RO for additional 
development of the record in January 2013.  

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).

The issue of whether there was CUE in February 1946, 
December 1958 and January 1972 rating decisions that denied 
service connection for bilateral hearing loss is being 
remanded to the RO via the Appeals Management Center (AMC), 
in Washington, DC.



FINDING OF FACT

The Veteran's claim for an effective date earlier that April 
30, 2001 for the grant of service connection for bilateral 
hearing loss disability cannot be substantiated on a legal 
basis.   


CONCLUSION OF LAW

The claim for an effective date prior to April 30, 2001, for 
the grant of service connection for bilateral hearing loss 
must be denied by operation of law.  38 U.S.C.A. §§ 5110, 
7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.400, 20.1103 
(2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), 
and the pertinent implementing regulation, codified at 38 
C.F.R. § 3.159 (2012), provide that VA will assist a 
claimant in obtaining evidence necessary to substantiate a 
claim, but is not required to provide assistance to a 
claimant if there is no reasonable possibility that such 
assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the 
claimant's representative, if any, of any information, and 
any medical or lay evidence, not previously provided to the 
Secretary that is necessary to substantiate the claim.  As 
part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain 
on behalf of the claimant.

However, as will be explained, the appeal here lacks legal 
merit because the issue presented involves a claim that 
cannot be substantiated as a matter of law; therefore no 
further assistance is owed.  See Sabonis v. Brown, 6 Vet. 
App. 426, 430 (1994) (where the law and not the evidence is 
dispositive the Board should deny the claim on the ground of 
the lack of legal merit or the lack of entitlement under the 
law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required 
to provide notice of the information and evidence necessary 
to substantiate a claim where that claim cannot be 
substantiated because there is no legal basis for the claim 
or because undisputed facts render the claimant ineligible 
for the claimed benefit); see also Mason v. Principi, 16 
Vet. App. 129, 132 (2002).

Because the law and not the evidence is dispositive in the 
instant case, additional factual development would have no 
bearing in the ultimate outcome.  Accordingly, VCAA can have 
no effect on this appeal.  See Sabonis supra.



Laws and Regulations

In general, the effective date of an evaluation and award of 
pension, compensation or dependency and indemnity 
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.  

The effective date of a claim received after a final 
disallowance is the date of receipt of the new claim or the 
date entitlement arose, whichever is the later. 38 C.F.R. § 
3.400(q)(2).


Analysis

In this case, the RO previously denied the Veteran's claim 
of service connection for bilateral hearing loss in February 
1946, December 1958 and January 1972. 

In April 2001, the Veteran petitioned to reopen his 
previously denied claim of service connection.  The RO 
confirmed and continued the previous denial of service 
connection in a June 2002 rating decision.  The Veteran 
appealed this decision, and his claim was denied by the 
Board in a decision promulgated in April 2007.

The Veteran appealed the Board's decision to the Court.  In 
a June 2009 Memorandum Decision, the Court reversed the 
denial of service connection for hearing loss and remanded 
the matter for a determination of the appropriate disability 
rating and effective date.  

In November 2009, the Board promulgated a decision that 
granting service connection for a bilateral hearing loss 
disability.  

In the December 2009 rating decision, the RO implemented the 
Court's decision and assigned a 50 percent disability rating 
for bilateral hearing loss, effective on April 30, 2001.  
This was deemed to be the date of receipt of the Veteran's 
reopened claim.  

In August 2010, the Veteran submitted a statement that "[he] 
[was] appealing this decision on the grounds that the VA 
made serious errors and/or omissions with my case from when 
it was originally opened in June 1946 until the most recent 
denial in June 2010."  

This statement was construed as a Notice of Disagreement 
with the December 2009 rating decision. However, the Board 
finds in considering the statement on its face and reviewing 
the entire record that the Veteran has not expressed 
disagreement for a specific effective date for the grant of 
service connection on a factual basis relating to the 
receipt of his reopened claim. 

Rather, this appears to amount to assertions of clear and 
unmistakable error in connection with the final rating 
decisions of the RO that had previously denied the claim of 
service connection.   

The controlling case law emphasizes that, once there is a 
relevant final decision on an issue, there cannot be a 
"freestanding claim" for an earlier effective date.  Rudd v. 
Nicholson, 20 Vet. App. 296 (2006); see Andrews v. 
Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); Cook v. Principi, 
318 F.3d 1334 (Fed. Cir. 2002) (en banc); see also 
Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005).  

To the extent that the Veteran must overcome the finality of 
the previous rating decisions, the RO must initially address 
the motion of clear and unmistakable error (CUE).  See Cook, 
318 F.3d at 1339; see also 38 U.S.C.A. § 5109A(a) (West 
2002) ("a decision by the Secretary . . . is subject to 
revision on the grounds of clear and unmistakable error.  If 
evidence establishes the error, the prior decision shall be 
reversed or revised."). 

Accordingly, the Veteran's claim for an effective date 
earlier than April 30, 2001, for the grant of service 
connection for bilateral hearing loss must be denied under 
the law.  See Rudd, 20 Vet. App. 296; see also Sabonis, 
6 Vet. App. at 430.


ORDER

The appeal as to the claim for an effective date earlier 
than April 30, 2001, for the grant of service connection for 
bilateral hearing loss is dismissed.


REMAND

As noted, the Veteran's claim of service connection for 
bilateral hearing loss was previously denied by the RO in 
unappealed rating decisions in February 1946, December 1958 
and January 1972. 
   
If VA determines that the earlier decision was clearly and 
unmistakably erroneous, the prior decision will be reversed 
or amended, and for the purposes of authorizing benefits, 
the rating or adjudicative decision that constitutes a 
reversal of the prior decision on the grounds of clear and 
unmistakable error has the same effect as if the correct 
decision had been made on the date of the reversed decision.  
38 C.F.R. § 3.105(a) (2012).  

The Board recently remanded the case in order to attempt to 
copies of records referable to reported treatment received 
by the Veteran during service.  However, this effort was 
unavailing.  

Copies of the Veteran's service personnel records appear to 
have been associated with the claims file in connection with 
this recent request, but have not been addressed by the RO 
in the context of the current appeal.  

Thus, the RO should review these additional records and 
adjudicate, in the first instance, the Veteran's motion of 
clear and unmistakable error.  See Huston v. Principi, 18 
Vet. App. 395, 402-03 (2004).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited 
handling is requested.)

After completing any indicated 
development and providing appropriate 
notification to the Veteran, the RO 
should adjudicate the motion of clear 
and unmistakable error in the February 
1946, December 1958 and January 1972 
rating decisions that denied service 
connection for bilateral hearing loss.  
If any benefit sought on appeal remains 
denied, the RO should furnish a fully 
responsive Statement of the Case (SSOC) 
to the Veteran and his representative, 
they should be afforded a reasonable 
opportunity for response.

Then, if indicated, this case should be returned to the 
Board for the purpose of appellate disposition.  

The Veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


_________________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals


 Department of Veterans Affairs