Citation Nr: 1335529 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-29 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a certificate of eligibility for financial assistance for the purchase of automobile and adaptive equipment or for adaptive equipment only. 2. Entitlement to an effective date earlier than July 11, 2011, for the grant of service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and his daughter ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the United States Army from September 1955 to September 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2012 and January 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2013, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's claims folder. On the day of his September 2013 hearing, the Veteran submitted additional lay statements. This evidence has not yet been considered by the RO. However, because this evidence was submitted with a waiver of RO consideration, the Board accepts it for inclusion in the record and consideration at this time. See 38 C.F.R. §§ 20.800, 20.1304 (2013). A review of the Virtual VA paperless claims processing system reveals additional, pertinent VA treatment records dated in 2012. However, in the March 2013 Statement of the Case (SOC), the RO indicated that it had reviewed these records in the Virtual VA system. Thus, there is no prejudice in the Board considering these records. 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 is service-connected for bilateral hearing loss, rated as 100 percent disabling; and tinnitus, rated as 10 percent disabling. The Veteran is also in receipt of special monthly compensation under 38 U.S.C.A. § 1114(k) on account of deafness of both ears, having absence of air and bone conduction. 2. The Veteran's service-connected disabilities have not resulted in the loss or permanent loss of use of one or both feet, the loss or permanent loss of use of one or both hands, the permanent impairment of vision of both eyes, a severe burn injury, or ankylosis of one or both of the knees or one or both of the hips. He does not meet the requirements for entitlement to financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only. 3. The Veteran first filed a claim for service connection for bilateral hearing loss on April 4, 2002. 4. In a final August 2002 rating decision, the RO denied service connection for bilateral hearing loss. No service treatment records were available at that time. The Veteran was notified of the August 2002 rating decision and of his appellate rights, but he did not appeal that determination. There was also no evidence received within one year of that determination. 5. The RO granted service connection for bilateral hearing loss in a July 2012 rating decision. The RO established an effective date of July 11, 2011, the date of receipt of the claim to reopen. 6. The basis of the RO's grant of service connection for bilateral hearing loss in the July 2012 rating decision should have been, at least in part, due to the receipt of in-service morning reports that were first received by the RO in June 2012. These in-service morning reports confirm that the Veteran was medically treated for an injury in July and August of 1956, as he had previously asserted. 7. These additional in-service morning reports, by law, allow for reconsideration of the earlier August 2002 rating decision that denied service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only, have not been met. 38 U.S.C.A. §§ 3901, 3902, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350, 3.808, 4.63, 17.156 (2012). 2. The August 2002 rating decision, which denied service connection for bilateral hearing loss, was final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2013). 3. The requirements have been met for an earlier effective date of April 4, 2002, for the grant of service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.156(c), 3.159, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist For the automobile and adaptive equipment and earlier effective date issues, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters sent from the RO to the Veteran in August 2011, April 2012, and December 2012. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his automobile and adaptive equipment and earlier effective date claims; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the August 2011 and December 2012 VCAA letters sent from the RO further advised the Veteran of the elements of a disability rating and an effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). With regard to the earlier effective date claim, the issue arises from disagreement with the effective date assigned upon the grant of service connection for bilateral hearing loss in a July 2012 rating decision. In this regard, the courts have held, and VA's General Counsel has agreed, that in cases where service connection has been granted and an effective date has been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Indeed, to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess v. Nicholson, 19 Vet. App. 473, 491, 493, 500-01 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). See also VAOPGCPREC 8-2003 (Dec. 22, 2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. In any event, although adequate VCAA notice was provided with regard to establishing an earlier effective date, no further VCAA notice is necessary for a downstream effective date issue. Thus, the Veteran has received all required notice in this case, such that there is no error in the content of VCAA notice. See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). Moreover, with regard to the timing of VCAA notice, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the July 2012 and January 2013 rating decisions on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured in-service morning reports, VA treatment records, and private medical evidence as authorized by the Veteran. For his part, the Veteran has submitted personal statements, lay statements from family, a private aid and attendance examination, and hearing testimony. The Veteran has not identified any outstanding, available evidence that is relevant to his claims being decided herein. In this case, the majority of the Veteran's service treatment records appear to have been destroyed in the fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri in July 1973. In cases where service treatments are missing or presumed destroyed, the Board has a heightened duty to assist the Veteran with the development of evidence in support of his claim. See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006); Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). In the present case, VA has met its heightened duty to assist the Veteran with the development of evidence in support of his claims. Specifically, the RO has made extensive efforts to locate any missing service treatment records. Nevertheless, VA and the Veteran received negative responses from the NPRC and other potential locations. In an April 2012 Formal Finding Memorandum, the RO detailed its extensive efforts to secure these records. The RO also indicated that all procedures to obtain the Veteran's complete service treatment records were correctly followed and that all efforts had been exhausted; therefore, any further attempts would be futile. See 38 C.F.R. § 3.159(c)(2) and (3). Thus, the Board finds no basis for further pursuit of any missing service treatment records, as such efforts would be futile at this juncture. With regard to the September 2013 videoconference hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012). At the videoconference hearing, the Veterans Law Judge, the Veteran, and the representative outlined the earlier effective date and automotive and adaptive equipment issues on appeal and engaged in a discussion as to substantiation of these claims. For the automotive and adaptive equipment issue, the Veterans Law Judge advised the Veteran that the need for automotive and adaptive equipment must be based on a service-connected disability. See testimony at pages 13-14. The Veteran's family interjected that the Veteran should not be driving a vehicle under any circumstance. For the earlier effective date issue, the Veteran was advised of the general rule that the proper effective date is generally the date of claim or the date of entitlement, whichever is later. See testimony at pages 15-16. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. Overall, the hearing was legally sufficient, and there has been no allegation to the contrary. Moreover, the Veteran and his representative have not requested another hearing. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Governing Laws and Regulations for Automotive and Adaptive Equipment A certification of eligibility for financial assistance in the purchase of one automobile or other conveyance and of basic entitlement to necessary adaptive equipment will be made where a veteran who, due to a service-connected disability, has: (i) the loss, or permanent loss of use, of one or both feet; (ii) the loss or permanent loss of use of both hands; or, (iii) permanent impairment of vision in both eyes, resulting in vision of 20/200 or less in the better eye with corrective glasses, or vision of 20/200 or better, if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of the visual field subtends an angular distance no greater than twenty degrees in the better eye; or (iv) a severe burn injury of deep partial thickness or full thickness burns resulting in scar formation that cause contractures and limit motion of one or more extremities or the trunk and preclude effective operation of an automobile. 38 U.S.C.A. §§ 3901, 3902 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350, 3.808 (2013). See also 78 Fed. Reg. 57486 - 57487 (Sept. 19, 2013) (recently adding criteria for severe burn injury effective on October 21, 2013). A veteran who does not qualify as an "eligible person" under the aforementioned criteria may nevertheless be entitled to adaptive equipment, and adaptive equipment only, if he is entitled to VA compensation for ankylosis of one or both knees, or one or both hips, and adaptive equipment is deemed necessary for the Veteran's licensure and safe operation of a vehicle. 38 U.S.C.A. § 3902(b)(2); 38 C.F.R. §§ 3.808(b)(5), 17.156(a)(1). Ankylosis is complete immobility of the knee joint in a fixed position, either favorable or unfavorable. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc. in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. See also 38 C.F.R. § 4.63. Examples under 38 C.F.R. § 3.350(a)(2) of what constitutes loss of use of a foot or hand include extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 and 1/2 inches or more. Complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve is also considered loss of use of a foot under 38 C.F.R. § 3.350(a)(2). Analysis - Automotive and Adaptive Equipment The Board finds that the Veteran is not an eligible person for purposes of providing an automobile or other conveyance or adaptive equipment. 38 U.S.C.A. §§ 3901, 3902 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350, 3.808, 4.63, 17.156 (2013). The Veteran is currently service-connected for bilateral hearing loss, rated as 100 percent disabling; and tinnitus, rated as 10 percent disabling. The Veteran is also in receipt of special monthly compensation under 38 U.S.C.A. § 1114(k) on account of deafness of both ears, having absence of air and bone conduction. Notably, however, the Veteran is not service-connected for any disability resulting in the loss or permanent loss of use of one or both feet, the loss or permanent loss of use of one or both hands, the permanent impairment of vision of both eyes, for a severe burn injury, or for ankylosis of one or both of the knees or one or both of the hips. He also has not claimed service connection for any of these particular disabilities. With the exception of severe vision loss in his eyes, there is no clinical evidence documenting treatment for the loss or permanent loss of use of one or both feet, the loss or permanent loss of use of one or both hands, for a severe burn injury, or for ankylosis of one or both of the knees or one or both of the hips. In addition, he does not allege that his service-connected hearing loss or tinnitus disabilities cause any of the above disabilities. Many of the lay statements submitted by the Veteran and his family members assert he is eligible for financial assistance for the purchase of an automobile or other conveyance or adaptive equipment on the basis that he has severe vision loss in both eyes that requires him to have a car with automatic transmission and other adaptive equipment. Although VA treatment records dated in 2012 and a December 2012 VA Form 21-2680 (Examination for Housebound Status of Permanent Need for Regular Aid and Attendance) confirm loss of vision in both eyes, he is not service-connected for either eye, and he has not claimed service connection for either eye. According to his September 2013 hearing testimony, his claim for entitlement to an automobile or other conveyance or adaptive equipment is based on the effects of his service-connected hearing loss. See hearing testimony at pages 12-15. There was no mention of the effects of his vision loss at that time. However, once again, despite being service-connected for hearing loss and tinnitus, neither of these disabilities is eligible for consideration of assistance in the purchase of an automobile or other conveyance or adaptive equipment. That is, he is not service connected for any qualifying disability. For the aforementioned reasons, the criteria for automobile and adaptive equipment, or adaptive equipment only, are not met. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). Governing Laws and Regulations for Effective Dates Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C.A. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show clear and unmistakable error (CUE) in the prior denial of the claim. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). However, in this case, the issue of CUE in a specific, prior RO decision has not been raised by the Veteran, and therefore, it is not before the Board at this time. In addition, another exception applies when evidence, other than service treatment records, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The applicable statutory and regulatory provisions require that VA look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Federal Circuit has emphasized that this duty "is separate and distinct from the statutory benefit-of-the-doubt requirement under 38 U.S.C. § 5107(b)." Harris, 704 F.3d at 948. The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). In determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process, even for years, if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). The essential requirements of any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Analysis - Earlier Effective Date The Veteran's original informal claim for service connection for bilateral hearing loss was received by the RO on April 4, 2002. The Veteran subsequently filed a formal claim for service connection for bilateral hearing loss on a VA application form (VA Form 21-526), which was received by the RO on May 1, 2002. The RO denied the Veteran's original claim for service connection for bilateral hearing loss in an August 2002 rating decision. In that decision, the RO determined that there was no probative evidence of in-service or post-service treatment for bilateral hearing loss. It was also noted that his service treatment records were unavailable, as they had been destroyed in a fire in 1973. The RO notified the Veteran of the August 2002 rating decision and apprised him of his procedural and appellate rights, but he did not initiate an appeal. There was also no evidence received within one year of the issuance of this rating decision. Therefore, the August 2002 rating decision became final on the issue of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103. The Veteran later filed another formal claim to reopen service connection for bilateral hearing loss on July 11, 2011. The RO reopened the Veteran's claim and granted service connection for bilateral hearing loss in the July 2012 rating decision on appeal. The RO assigned an effective date of July 11, 2011, which was the date of receipt of the Veteran's claim to reopen. See 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). The RO based the grant of service connection on a May 2012 VA audiology examination that found that the Veteran's current bilateral hearing loss was caused by or the result of acoustic trauma sustained during active service in Japan in 1956 when he was hospitalized due to a mortar shell exploding. The Veteran had also submitted credible and consistent lay statements discussing the in-service mortar shell injury, as well as credible lay statements from his brother who served with him and had witnessed his in-service hospitalization for acoustic trauma in 1956. In addition, prior to the July 2012 rating decision, the RO had secured in-service morning reports in June 2012 confirming that the Veteran was medically treated in the months of July and August of 1956 while serving in Japan, as he had previously reported. The Veteran filed a notice of disagreement with the July 11, 2011, effective date assigned, and the appeal has now reached the Board. The Veteran seeks an earlier effective date of April 4, 2002, based on the earlier claim for service connection for bilateral hearing loss submitted at that time. In the alternative, he seeks an effective date of September 13, 1958, which was the day after his discharge from service, because he has experienced the symptoms of bilateral hearing loss from that time after sustaining the in-service injury. The Veteran has asserted that neither the military nor VA helped him with his hearing loss in 1958. He also testified in September 2013 that he filed earlier claims for service connection for bilateral hearing loss in 1958, 1959, and 1971. See August 2012 NOD; October 2012 and March 2013 VA Form 9s; September 2012, October 2012, November 2012, and May 2013 Veteran's statements; September 2013 hearing testimony at pages 3-11. Upon review of the evidence, an earlier effective date of April 4, 2002, is warranted for the award of service connection for bilateral hearing loss pursuant to 38 C.F.R. §3.156(c), based on the receipt of in-service morning reports dated in July and August of 1956. In this regard, newly discovered service treatment records can serve as a basis for providing an early effective date under 38 C.F.R. §3.156(c). That is, 38 C.F.R. § 3.156(c)(1) provides that, 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, notwithstanding paragraph (a) of the same section (which defines new and material evidence). Under 38 C.F.R. § 3.156(c)(1), service department records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). Under 38 C.F.R. § 3.156(c)(2), service department records do not include 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, or from any other official source. See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011); See Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008). Under 38 C.F.R. § 3.156(c)(3), an award made based all or in part on additional service department records 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 provisions of this part applicable to the previously decided claim. In accordance with the above provision, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim should simply be reviewed on a de novo basis. Besides not having to submit new and material evidence, the benefit of this provision is to assign the earliest possible effective date without the claimant having to demonstrate clear and unmistakable error in a prior final determination, if the service connection claim is granted. This provision was meant to allow VA to reconsider decisions and retroactively evaluate disability in a fair manner on the basis that a claimant should not be harmed by an administrative deficiency of the government. Thus, 38 C.F.R. § 3.156(c) has the potential to offer an earlier effective date in the present case. As noted above, the RO previously established an effective date of July 11, 2011, for the grant of service connection for bilateral hearing loss based on the date of receipt of the claim to reopen. See 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). The grant was based on new and material evidence, which was identified as a May 2012 VA audiology examination that determined that the Veteran's current bilateral hearing loss was caused by or the result of acoustic trauma sustained during active service in Japan in 1956 when he was hospitalized due to a mortar shell exploding. The Veteran had also submitted lay statements discussing the in-service mortar shell injury, as well as lay statements from his brother who served with him and had witnessed his in-service hospitalization for acoustic trauma in 1956. However, prior to the July 2012 rating decision that granted service connection for bilateral hearing loss, the RO had also secured previously missing in-service morning reports in June 2012 confirming that the Veteran was medically treated for an injury in the months of July and August of 1956 while serving in Japan, as he had previously reported. As such, there were newly-discovered service treatment records that were relevant to the claimed in-service injury. Thus, the August 2002 rating decision should have been reconsidered based on these additional service records, and the grant would have likely been based at least in part on these additional records, as they provided evidence that theVeteran was treated during the timeframe previously identified by him. As to the date of claim, with de novo reconsideration of the August 2002 rating decision under 38 C.F.R. § 3.156(c), the April 4, 2002, statement from the Veteran requesting service connection for bilateral hearing loss is the earliest pending informal claim for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); LaLonde, 12 Vet. App. at 382. That is, the April 4, 2002, informal claim clearly reveals (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski, 23 Vet. App. at 84. Upon receipt of an informal claim, if a formal claim has not been filed, an application form (VA Form 21-526) will be forwarded to the claimant for execution. If the formal claim is received by the RO within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a); Jernigan v. Shinseki, 25 Vet. App. 220 (2012); Norris v. West, 12 Vet. App. 413, 421 (1999). In the present case, within one year of filing his April 2002 informal claim, the Veteran filed a formal claim for service connection for bilateral hearing loss on a VA application form (VA Form 21-526) that was received on May 1, 2002. Thus, the proper date of claim is the date that the earlier informal claim was received, which was April 4, 2002. The Board has also considered the Veteran's assertions at the September 2013 hearing that that he filed earlier claims for service connection for bilateral hearing loss in 1958 in Denver, Colorado; in 1959 in Tulsa, Oklahoma; and in 1971 in Houston, Texas. See hearing testimony at pages 3-11. The Board notes that the Veteran separated from service in September 1958, and the claims file does not contain any communication from the Veteran or a representative indicating an intent to seek, or a belief in entitlement to, service connection for bilateral hearing loss prior to the current April 4, 2002, informal claim. 38 C.F.R. §§ 3.1(p), 3.155(a). The only evidence suggesting otherwise is the Veteran's September 2013 hearing testimony indicating that he filed earlier claims for service connection for bilateral hearing loss at multiple ROs. However, the Board finds that such allegations are not persuasive or credible. Indeed, the Veteran himself admitted at the hearing that he could remember some of the details pertaining to the alleged filing because it was a long time ago. Notably, prior to giving this testimony, in dozens of very detailed statements from himself and his spouse dated from 2011 to 2013, neither the Veteran nor his spouse specifically identified any prior service connection claim, aside from the April 2002 claim. This fact weighs heavily against the credibility of his subsequent hearing testimony. Personal interest can affect the credibility of lay evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Moreover, there is a presumption of regularity in the law to the effect that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the RO level, such as in the instant case. It is clear from these cases that a statement of an appellant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). In this case, there is no evidence that the RO did not properly fulfill its duty in handling any mail or other correspondence that would have been submitted by the Veteran or a representative. The Veteran's allegation that he previously filed a claim that was denied is insufficient to rebut the presumption of regularity. Moreover, to the extent that the Veteran may have sought medical treatment at VA for hearing loss prior to April 4, 2002, the Board notes that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Although there are two recognized exceptions to this general rule, those exceptions are applicable only when an underlying claim has been awarded and the medical records demonstrate that the veteran's disability has increased, or when an underlying claim has been denied and the medical records are new and material evidence to reopen the claim. See 38 C.F.R. § 3.157(b) (2013); see also Leonard v. Principi, 17 Vet. App. 447, 451 (2004); Lalonde v. West, 12 Vet. App. 377, 381 (1999); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (holding that medical records do not satisfy the regulatory requirements of an informal claim if the condition disclosed in the medical records had not previously been determined to be service-connected); see also Crawford v. Brown, 5 Vet. App. 33 (1993); 38 C.F.R. § 3.157(b)(1) (1996). Neither of those exceptions applies in this case, as the Veteran did not have a service-connected disability, and no claim had been previously denied. For the foregoing reasons, the Board finds that the Veteran had not filed a formal or informal claim prior to April 4, 2002. Further, there is no provision in the law for awarding an earlier effective date based on the Veteran's assertion that a bilateral hearing loss disorder existed prior to the date of the original claim, which was April 4, 2002. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, 12 Vet. App. at 35; Talbert, 7 Vet. App. at 356-57. The Board emphasizes that, in determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative. Cintron, 13 Vet. App. at 259. As to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C.A. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. In this case, December 2000 private treatment records noted hearing loss problems since the 1970s, and a May 2012 VA audiology examination found that the Veteran's current bilateral hearing loss was caused by or the result of acoustic trauma sustained during active service in Japan in 1956 when he was hospitalized due to a mortar shell exploding. The Veteran has also submitted lay statements discussing the in-service mortar shell injury from 1956 with continuity of symptoms since that time, as well as credible lay statements from his brother who served with him and had witnessed his in-service hospitalization for acoustic trauma in 1956. Thus, the evidence suggests that the Veteran could have been entitled to service connection for bilateral hearing loss prior to his claim filed in April 2002. An award made based all or in part on additional service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156(c)(3). Therefore, in the present case, the date of the original claim received on April 4, 2002, is later than the date entitlement arose. Accordingly, the Board concludes that April 4, 2002, is the proper effective date for the award of service connection for bilateral hearing loss. 38 U.S.C.A. § 5107(b). ORDER Entitlement to a certificate of eligibility for financial assistance for the purchase of automobile and adaptive equipment or for adaptive equipment only is denied. An earlier effective date of April 4, 2002, for the grant of service connection for bilateral hearing loss is granted, subject to the law and regulations governing the payment of VA monetary benefits. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs