Citation Nr: 1330632 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-26 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than June 10, 2002, for the award of service connection for hearing loss. REPRESENTATION Appellant represented by: Shawn M. Domzalski, Esq. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1945 to November 1946 and from September 1950 to September 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which implemented an August 2008 Board decision's grant of service connection for hearing loss. The RO assigned a noncompensable (zero percent) evaluation effective November 18, 2004. The Veteran appealed, contending that an earlier effective date was warranted. He did not disagree with the initial rating assigned, although it is noted that a subsequent December 2008 rating decision assigned a compensable rating of 10 percent, effective from November 18, 2004. 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). This case was previously before the Board in April 2012, at which it was determined that the Veteran was entitled to an earlier effective date of June 10, 2002, but no earlier. It is noted that the Virtual VA system reflects a May 2012 rating decision subsequently effectuated that decision, and assigned a 10 percent rating from June 10, 2002. The Veteran appealed the Board's April 2012 decision to the United States Court of Appeals for Veterans Claims (Court). By a February 2013 Order, the Court, pursuant to a January 2013 joint motion for remand (JMR), vacated the Board's decision to the extent it determined an effective date earlier than June 10, 2002, was not warranted, and remanded the case for action consistent with the terms of the JMR. FINDINGS OF FACT 1. The Veteran filed claims seeking service connection for hearing loss, that were received by VA on December 2, 1965 and June 10, 2002. 2. Rating decisions in January 1966 and January 2003 denied the Veteran's claims for service connection for hearing loss based in part on the lack of evidence of in-service noise exposure. 3. The Veteran submitted a statement describing an in-service mortar accident on June 10, 2002; he submitted verification of this incident from the Department of the Navy on November 18, 2004. The Department of the Navy records constitute relevant official service department records that existed and had not been associated with the claims file when VA decided the Veteran's claim. 4. The January 2013 JMR indicated that the Veteran's dates of service and his unit number were sufficient to obtain the relevant service department records which verified the in-service mortar accident, and that the dates of service and unit was of record since the time of the initial claim. CONCLUSION OF LAW The criteria for an earlier effective date of December 2, 1965, and no earlier, for the establishment of service connection for hearing loss are met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2013); Mayhue v. Shinseki, 24 Vet. App. 273 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran's appeal originates from a disagreement with the initial effective date assigned following the establishment of service connection for hearing loss. In Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006), the Court 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. Thus, VA's duty to notify in this case is satisfied. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Despite the foregoing, the Board notes that the Veteran was sent VCAA-compliant notification in November 2004 which informed him of VA's basic duties to assist, as well as correspondence in March 2006 which informed him of the information and evidence used by VA to assign disability rating(s) and effective date(s). The Veteran has also actively participated in the processing of his case, and the statements submitted in support of his earlier effective date claim, to include from his attorney, have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist in the development of the case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of this claim, and nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. Moreover, as a general rule, the adjudication of a claim for an earlier effective date is based upon evidence already in the claims folder. Consequently, the Board finds that the duty to assist has been satisfied in this case. The Board further notes that it previously determined in the April 2012 decision that the duties to notify and assist had been satisfied, and nothing in the January 2013 JMR challenges that finding. Rather, the JMR finds fault in the Board's analysis of the evidence already of record. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). The Board is therefore confident that if the Court had any substantive comments concerning the Board's findings regarding the duties to assist and notify, such would have surfaced in the JMR or the Court Order so that any deficiencies could be corrected. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In making all determinations, the Board must fully consider the lay assertions of record. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis The effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.156(c) (1) however, state, in part, that "notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim..." In addition, 38 C.F.R. § 3.156(c)(2) states, in part, "paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center [JSRRC], or from any other source." Finally, 38 C.F.R. § 3.156(c)(3) states that "[a]n award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the previously decided claim." By way of history, the Board notes that the Veteran previously sought service connection on December 2, 1965 and June 10, 2002. These claims were originally denied by rating decisions promulgated in January 1966 and January 2003. His claim for service connection was ultimately granted based in part on additional service records showing that he was involved in a June 1951 mortar accident, establishing in-service noise exposure. The Veteran has contended, in essence, that his effective date should be from his original claim in December 1965. He has cited to 38 C.F.R. § 3.156(c) in support of this contention. It does not appear he has disputed the finality of the January 1966 and January 2003 rating decisions, nor does it appear he contends these decisions were the product of clear and unmistakable error (CUE). On his December 1965 claim form, the Veteran indicated that he experienced a hearing condition and residuals of a concussion as a result of his military service. He reported receiving treatment for an "ear condition" at the Camp Lejeune Hospital in 1951. He made no mention whatsoever of a mortar accident, nor did he indicate that there may be additional service records, other than his service treatment records, that would support his claim of in-service incurrence. As the service treatment records did not show any in-service hearing or ear problems, the RO denied his claim for service connection for hearing loss. When filing his June 2002 claim to reopen the previously denied claim for service connection for hearing loss, the Veteran submitted a statement describing a June 1951 mortar accident. In his statement, also received by VA on June 10, 2002, the Veteran indicated that he had been involved in a live fire field accident in July 1951 and that the accident had been documented by his Commanding General. He also reported escorting the remains of one of the soldiers killed in the accident to his family, identifying this soldier by name. The Veteran provided a reasonable date range, an account of what happened, and the name of one of the casualties. This information was sufficient to obtain relevant service department records. Notably, this is the same information that the Veteran provided to the Department of the Navy when he successfully obtained these records, and the Board cited to this noise exposure in support of its grant of service connection. In determining that an effective date no earlier than June 10, 2002, was warranted in this case, the Board found in its April 2012 decision that while the Veteran had provided sufficient information for VA to identify and obtain the relevant records from the Department of the Navy at the time of the January 2003 denial, he had not provided sufficient information for VA to identify and obtain the relevant records from the Department of the Navy at the time of the January 1966 denial. The JMR contended that the Board committed error in not addressing the Court's decision in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), in applying 38 C.F.R. § 3.156(c)(2) to this case. In Mayhue, the veteran in that case had provided general information on three stressors which included swapping duty with a friend that was killed when the veteran's bed was blown up; being attacked while on road duty and fleeing rather than fighting; pushing a child with explosives on his body off a truck and seeing the child's body explode. He did not provide additional information and VA determined that the stressors were not capable of being verified. His claim was denied. Thereafter, the veteran in Mayhue sought to reopen his claim several years later. He provided information on his unit and descriptions of his previous stressors. He added two stressors of his witnessing a collision between a piece of heavy machinery and a taxi that decapitated a Vietnamese woman and his being caught unarmed in the middle of a firefight. VA again determined that there was no enough information to identify a particular event that could be corroborated. The JSRRC later provided a report wherein it said the veteran's claimed stressors could not be verified. However, the JSRRC report said that, although records for the veteran's unit could not be located, records for another unit that was co-located with the veteran's unit showed that the base was attacked during the veteran's service in Vietnam. The RO relied on the report of attacks on the veteran's base to grant service connection for PTSD. The effective date was the date the veteran sought to reopen his claim for service connection. The veteran appealed the effective date for service connection; he sought an effective date as of his earlier claim. In essence, VA denied his claim for an earlier effective date by relying on 38 C.F.R. § 3.156(c)(2) and that the veteran failed to submit sufficient information to corroborate his stressors. The Court acknowledged that the veteran did fail to provide such information. The Court noted that the veteran was granted service connection for confirmation of a stressor that his unit was attacked. Service connection was not based on any of the stressors that lacked sufficient information. Mayhue, 24 Vet. App. at 279-80. The Court went on to say that the records that were ultimately relied on to verify the veteran's stressor, such as his unit number and dates of duty in Vietnam, were always a part of the claims file. The Court stated that "notwithstanding the fact that Mr. Mayhue did not cooperate fully with VA's requests for information to verify other (emphasis in original) claimed stressors, VA's failure to verify his stressor was the result of an administrative error in locating his unit records." Id. at 280. In addition, the Court cited to language that was used in publishing a proposed rule change to 38 C.F.R. § 3.156(c) where the Secretary had said that a claimant should not be harmed by an administrative deficiency of the government. The Court said that an administrative deficiency occurred prior to the veteran's failure to cooperate. Moreover, the information in the claims file at the time of the initial claim was ultimately sufficient to verify the veteran's stressor. The Court held that it was administrative error for VA to fail to verify the veteran's stressor with the information it had at the time of the initial claim and not the veteran's subsequent failure to provide additional information sufficient to verify other claimed stressors that prevented VA from verifying the base attack stressor until several years later. Based on their determination, the Court said the Board erred in applying 38 C.F.R. § 3.156(c)(2) in denying the veteran an earlier effective date for service connection. The January 2013 JMR contended that the facts of this case are similar to those of Mayhue. In pertinent part, the JMR contended that the Veteran's dates of service and unit of service had been of record since the date of his initial claim. It was also contended that the Veteran was ultimately able to obtain the service department records upon which service connection was established by submitting, inter alia, his dates of service and his unit number to the National Archives and Records Administration (NARA). Therefore, the parties to the JMR agreed that the Veteran's case was sufficiently similar to the facts of Mayhue that the Board was required to specifically address that case. The Board notes that it is well settled that "[w]here a case is addressed by an appellate court, remanded, then returned to the appellate court, the 'law of the case' doctrine operates to preclude reconsideration of identical issues." See Johnson v. Brown, 7 Vet. App. 25, 26 (1994). Moreover, the Court has specifically held that this principle applies to Court decisions on cases remanded to the Board. See Browder v. Brown, 5 Vet. App. 268 (1993). In addition, the Court has held that a corollary principle is the "Mandate Rule": "a lower court is generally bound by the terms of the mandate and has no power or authority to deviate from that mandate." Chisem v. Brown, 8 Vet. App. 374, 375 (1995) (For purposes of this analysis, this Court's position is analogous to that of a 'circuit court,' while the [Board] stands somewhat in the position of a district court.) Further, the Court has held once VA undertakes an examination, even if not required to do so, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also 38 C.F.R. § 4.2 (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). In this case, as detailed above, the January 2013 JMR indicated that the Veteran's dates of service and his unit number were sufficient to obtain the relevant service department records which verified the in-service mortar accident, and such information was of record since the time of the initial claim, and cited to support the grant of service connection. Although this assertion was not specifically stated/endorsed by the February 2013 Court Order, the Order did adopt the JMR in vacating the Board's decision to the extent it denied an effective date earlier than June 10, 2002, and remanded the case for action consistent with the terms of the JMR. In order for the Board to be consistent with the terms of the JMR, it must accept and adjudicate this claim pursuant to its assertion that information necessary to obtain the service records that substantiated the claim of service connection for hearing loss were part of the record since the time of the initial claim. In view of the foregoing, the Board must find that 38 C.F.R. § 3.156(c)(2) is not controlling. Pursuant to the Court's holding in Mayhue, it was VA's administrative failure in failing to verify the Veteran's noise exposure at the time of the initial claim and not the failure of the Veteran to provide additional information sufficient to verify this incident that prevented VA from actually verifying the incident until many years after the initial claim. See Mayhue, 24 Vet. App. at 280. Although no conclusions regarding the level of disability that existed at the time of the December 1965 claim for benefits need be made at this time, upon review of the evidence of record, the application of the Court's holding in Mayhue, the terms of the JMR, and the provisions of 38 C.F.R. § 3.156(c)(1), (3), the Board finds that an effective date as of the date of the original claim for service connection, December 2, 1965, is in order and the claim is granted to that extent. A thorough review of the record does not reflect the Veteran filed a claim of entitlement to service connection for hearing loss prior to December 2, 1965, nor does he contend otherwise. Inasmuch as no such claim was received within one year of either his November 1946 or September 1951 dates of separation from service, the effective date can be no earlier than this date of claim. Therefore, an effective date earlier than December 2, 1965, is not warranted in this case. ORDER An earlier effective date of December 2, 1965, and no earlier, for the establishment of service connection for hearing loss is granted, subject to the laws and regulations regarding the award of benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs