Citation Nr: 1332718 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-15 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date earlier than January 9, 2007, for an award of service connection for bilateral hearing loss, to include due to clear and unmistakable error (CUE) in a June 6, 2007 rating decision. REPRESENTATION Appellant represented by: Ted Sumner, Esquire WITNESSES AT HEARING ON APPEAL The Veteran; the appellant; their daughter ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from August 1941 to October 1945. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied entitlement to an effective date prior to January 9, 2007 for an award of service connection for bilateral hearing loss, to include due to clear and unmistakable error (CUE) in a June 6, 2007 rating decision. In December 2010, the Veteran, the appellant, and their daughter testified at a Travel Board hearing in front of a Veterans Law Judge of the Board. The transcript of the hearing has been reviewed and is associated with the claims file. In a January 2011 Decision, the Board, in pertinent part, denied the Veteran's claim for an effective date prior to January 9, 2007, for the grant of service connection for bilateral hearing loss. The Veteran appealed the Board's Decision to the U.S. Court of Appeals for Veterans Claims (Court). While the appeal was pending at the Court, the Veteran passed away on April 30, 2012. After the Veteran's death, the appellant submitted evidence that showed that she was the Veteran's wife at the time of his death and the Court subsequently approved her application for substitution for the Veteran's claim. The Veteran's surviving spouse is substituted under the law as the appellant regarding the Veteran's claim for an earlier effective date. Subsequently, VA's Office of General Counsel and the appellant's representative filed a Joint Motion for Remand (Joint Motion), requesting that the Court vacate the portion of the Board's January 2011 Decision regarding the issue of an earlier effective date for the grant of service connection for bilateral hearing loss and remand that issue to the Board for further development. In October 2012, the Court issued an Order granting the Joint Motion. The Veterans Law Judge who conducted the December 2010 Travel Board hearing is no longer employed with the Board. Under such circumstances, VA regulations allow appellants the opportunity to testify at an additional Board hearing before a different Veterans Law Judge. 38 C.F.R. § 20.717 (2012). VA did not issue a letter to the appellant, asking whether she wished to participate in an additional Board hearing. Yet, as this decision fully grants the appellant's claim for an earlier effective date for the grant of service connection for bilateral hearing loss, the Board finds that the failure to advise the appellant regarding the possibility of another hearing is not prejudicial to her claim. 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's initial claim for service connection for bilateral hearing loss was filed on October 13, 1945. 2. The RO in Fargo, North Dakota, initially denied the Veteran's claim for service connection for bilateral hearing loss in a December 1945 rating decision. Notice of that decision was mailed to his address of record in Killdeer, North Dakota. The Veteran did not appeal. 3. The RO in Fargo, North Dakota, again denied the Veteran's claim for service connection for hearing loss in a July 1947 rating decision. Notice of that decision was mailed to his address of record in Killdeer, North Dakota. The Veteran did not appeal. 4. On May 13, 1948, the Veteran filed a claim at the RO in Portland, Oregon, and notified VA that he was living in Portland. 5. In June 1948, the RO in Fargo, North Dakota, transferred the Veteran's records to the RO in Portland, Oregon, due to the Veteran's acknowledged change of residence. 6. In a September 1949 rating decision, the RO in Portland, Oregon, denied the Veteran's claim for service connection for bilateral hearing loss. There is no indication that the Veteran was provided notice of this decision. 7. On January 9, 2007, the Veteran filed a claim for service connection for bilateral hearing loss. 8. In a June 2007 rating decision, the RO in Portland, Oregon, reopened the previously denied claim for service connection for bilateral hearing loss and granted service connection, effective January 9, 2007. 9. The claim for service connection for bilateral hearing loss submitted on May 13, 1948, remained pending as the Veteran was not provided notice of the September 1949 rating decision. CONCLUSIONS OF LAW 1. The June 6, 2007 rating decision that assigned an effective date of January 9, 2007, for an award of service connection for bilateral hearing loss contains clear and unmistakable error. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2012). 2. The criteria for an effective date of May 13, 1948, for the grant of service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 5110, 5111 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this decision, the Board grants an earlier effective date for service connection for bilateral hearing loss, dating back to May 13, 1948, as requested by the appellant's attorney in his brief dated February 29, 2012. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Analysis The Veteran's attorney has argued that a May 1948 claim submitted by the Veteran is still open and that the proper effective date for the award of service connection for hearing loss is 1948. See Appellant's brief, dated February 29, 2012. Pursuant to 38 C.F.R. § 3.104(a) (2012), "[a] decision of a duly constituted rating agency . . . shall be final and binding . . . based on evidence on file at the time and shall not be subject to revision on the same factual basis." See also 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012). An exception to this rule is when the VA has made a clear and unmistakable error in its decision pursuant to 38 C.F.R. § 3.105 (2012). See also 38 U.S.C.A. § 210(c), 7103 (West 2002 & Supp. 2012). Under 38 C.F.R. § 3.105(a), a prior final decision of VA can be reversed or amended where evidence establishes CUE. The Court has provided a three-part test to determine if there was CUE in a prior decision, as follows: (1) "[e]ither the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A mere misinterpretation of facts does not constitute CUE. Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). CUE "is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The effective date of a grant of service connection is governed by 38 U.S.C.A. § 5110 as implemented by 38 C.F.R. § 3.400. The proper effective date for an award based on receipt of new and material evidence other than service treatment records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). Briefly reviewing the facts in this case, the Veteran's initial claim for service connection for bilateral hearing loss was filed on October 13, 1945, the day after his October 12, 1945 discharge from service. VA initially denied the Veteran's claim for service connection for bilateral hearing loss in a December 1945 rating decision. The Veteran was provided notice of this decision by letter dated January 2, 1946, which was mailed to his address of record in Killdeer, North Dakota. The Veteran did not appeal. The RO in Fargo, North Dakota, again denied the Veteran's claim again for service connection for hearing loss in a July 1947 rating decision. The Veteran was provided notice of this decision by letter dated July 15, 1947, which was mailed to his address of record in Killdeer, North Dakota. The Veteran did not appeal. In this regard, the Board notes that the addresses on the rating decisions and the accompanying January 1946 and July 1947 letters notifying the Veteran of his appellate rights were sent to him in Killdeer, North Dakota. There is a presumption of regularity that attends the administrative functions of the government. The law presumes that the rating decision and letter containing notice of the Veteran's appellate rights was properly mailed and forwarded. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994), appeal dismissed, 53 F.3d 347 (Fed. Cir. 1995) (the law presumes the regularity of the administrative process 'in the absence of clear evidence to the contrary'). In this regard, the Board observes that the Killdeer, North Dakota, address is the same address that appears on the Veteran's December 1945 application for compensation, in the permanent mailing address field on the Veteran's December 1945 separation qualification record issued by the Army, and in the permanent address field on the Veteran's December 1945 report of physical examination of enlisted personnel prior to discharge, release from active duty, or retirement. Neither of these letters were returned to the RO as undeliverable. The Veteran did not request to transfer his records to his new address in Portland, Oregon, until June 1948. Thus, the Veteran was provided proper notice of the December 1945 and July 1947 rating decisions. He did not submit a notice of disagreement with either decision. Additional service treatment records were received at the RO in February 1948. However, these records relate to the Veteran's hemorrhoids and made no mention of any complaints or treatment of hearing loss. In sum, the Veteran did not appeal the December 1945 and July 1947 rating decisions, and the additional service treatment records received in February 1948 were not relevant to the claim for service connection for hearing loss. In addition, no new and material evidence was received within one year of the December 1945 and July 1947 ratings decisions. See 38 C.F.R. § 3.156(a)-(c). Again, the service treatment records received in February 1948 contained no complaints or findings of hearing loss. Thus, the December 1945 and July 1947 rating decisions became final. On May 13, 1948, the Veteran filed a claim at the RO in Portland, Oregon, by filing a VA Form 1950, the type of form used to apply for educational benefits at that time. The VA Form 1950 is not associated with the claims file, but is mentioned in a June 1948 VA administrative record, written by a VA administrator at the Portland RO. In an additional June 1948 VA administrative record, a VA administrator at the Fargo RO indicated that the Portland RO had requested that the Veteran's records be transferred there as the Veteran had advised VA that he was "residing with the jurisdiction" of the Portland RO. The record indicates that the Fargo RO subsequently transferred the Veteran's file to the Portland RO, due to the Veteran's change of residence. In a September 1949 rating decision, the Portland RO denied service connection for bilateral hearing loss. Although the Veteran had advised VA that he was living in Portland in May 1948, the address listed for the Veteran on the September 1949 rating decision was his previous address in Killdeer, North Dakota. The record does not contain any notation indicating that VA mailed this decision to the Veteran's home address in Portland. In fact, there is no notification letter of record. Moreover, in a June 1969 letter, addressed to the Veteran's U.S. Representative, the appellant's spouse stated that the Veteran had filed a claim for service connection for hearing loss upon moving to Portland, Oregon, but had never received a copy of any decision. The record contains a June 1969 letter written by a VA manager to the Veteran's Representative, explaining how the Veteran's claim for service connection for bilateral hearing loss was last denied in a September 1949 rating decision. However, the record does not contain any notation indicating that VA notified the Veteran of that decision in 1949. The Veteran filed a claim for service connection for bilateral hearing loss at the Portland RO on January 9, 2007. In a June 2007 rating decision, the Portland RO reopened the previously denied claim for service connection for bilateral hearing loss and granted the claim, effective January 9, 2007. The RO notified the Veteran of the June 2007 rating decision and of his appellate rights that same month. He did not appeal the effective date and the decision became final with respect to this issue. See 38 U.S.C.A. § 7105(c), 38 C.F.R. § 20.1103. Once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). There is no freestanding claim for an earlier effective date. Here, the appellant claims that there was CUE in the assigned effective date for the grant of service connection for bilateral hearing loss. In the June 2007 rating decision granting service connection for bilateral hearing loss, the RO made the award of service connection effective January 9, 2007, stating that on that date the Veteran filed his most recent application to reopen service connection for bilateral hearing loss. In response, the appellant, through her attorney, contends that the Veteran's claim for service connection for bilateral hearing loss, filed in May 1948, was still pending with VA at the time of the June 2007 rating decision and, therefore, the award of service connection should have been effective as of the date of filing of the May 1948 claim. As noted above, the RO denied the Veteran's claim for service connection for bilateral hearing loss in final December 1945 and July 1947 rating decisions. The Veteran advised the Portland RO in May 1948 that he had moved to Portland. Although the record does not contain any contemporaneous notation listing the Veteran's specific address, the June 1948 administrative records indicate that the Veteran had filed a claim for educational benefits using an official VA form. As the Portland RO requested that the Veteran's file be transferred from the Fargo RO due to the Veteran's place of residence, the Board must assume that the Veteran informed the Portland RO of his address at the time he filed the May 1948 claim. Regardless, in September 1949 the RO issued a rating decision denying the Veteran's claim for service connection for bilateral hearing loss which listed his address in North Dakota. There is no indication that the RO mailed the Veteran notice of the September 1949 rating decision. In a letter dating from June 1969, the Veteran's spouse specifically indicated that the Veteran had not received a copy of that rating decision. Thus, the evidence indicates that the Veteran did not receive notice of the September 1949 rating decision. The Court has held that the consequence of a failure to notify in accordance with VA regulations renders the RO's determination non-final. Best v. Brown, 10 Vet. App. 322, 325 (1997) (holding that the failure to notify a claimant that he was denied service connection for a particular condition constituted a procedural error under 38 C.F.R. §§ 3.103(e) and 3.104(a), rendered the RO's decision not final, and deprived the Court of jurisdiction over the claim). Thus, the Board finds that the September 1949 rating decision did not become final and binding on the Veteran as the overall evidence of record indicates that the Veteran was not notified of that decision. See 38 U.S.C.A. § 5104(a), (b); 38 C.F.R. § 3.104(a); See AG v. Peake, 536 F.3d 1306, 1308 (Fed. Cir. 2008) (holding as a result of RO failure to notify the appellant of his right to appeal, the underlying RO decision "never became final"); Cook v. Principi, 318 F.3d 1332, 1340 (Fed. Cir.2002) (en banc) (stating that a VA decision may be rendered nonfinal when "the time for appealing either an RO or a Board decision did not run where the [Secretary] failed to provide the veteran with information or material critical to the appellate process."). This, in turn, means that the Veteran's claim for service connection for bilateral hearing loss filed in May 1948 was still active at the time of issuance of the June 2007 rating decision. The proper effective date for an award based on receipt of new and material evidence other than service treatment records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). The Veteran filed his reopened claim for service connection for hearing loss on May 13, 1948. In the June 2007 rating decision, the Portland RO determined that the Veteran's bilateral hearing loss was directly related to his service. Therefore, as the Veteran is shown to have experienced bilateral hearing loss due to service and his May 1948 claim for service connection for bilateral hearing loss was still active when the June 2007 rating decision was issued, the grant of service connection for the Veteran's bilateral hearing loss should have been effective May 13, 1948. Therefore, the Board finds that the VA adjudicator committed CUE in the June 2007 rating decision, in assigning the January 9, 2007 effective date for the grant of service connection for bilateral hearing loss. The error is" undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Therefore, the Board finds that an effective date of May 13, 1948, for the grant of service connection for bilateral hearing loss should be granted. ORDER An effective date of May 13, 1948, for the grant of service connection for bilateral hearing loss is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs