Citation Nr: 1606887 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 13-15 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date prior to September 16, 2009, for a grant of service connection for bilateral hearing loss. 2. Entitlement to an effective date prior to September 16, 2009, for a grant of service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to October 1981 with additional periods of National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. The July 2007 rating decision that denied the Veteran's claim for service connection for bilateral hearing loss and tinnitus was not appealed and no new and material evidence was received within the appeal period. 2. No previously existing service department records relevant to the Veteran's claims for service connection hearing loss and tinnitus have been received following the July 2007 rating decision. CONCLUSIONS OF LAW 1. The unappealed July 2007 rating decision that denied the Veteran's claim for service connection for bilateral hearing loss and tinnitus is final as to those issues. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. The criteria for an effective date prior to September 16, 2009, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5101(a), 5110 (West 2014); 38 C.F.R. §§ 3.1(p), 3.6, 3.400, 3.151(a), 3.155 (2014). 3. The criteria for an effective date prior to September 16, 2009, for the grant of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 5101(a), 5110 (West 2014); 38 C.F.R. §§ 3.1(p), 3.6, 3.400, 3.151(a), 3.155 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims for earlier effective dates arise from disagreements following the grants of service connection. Assignment of an effective date is a downstream issue, and therefore the notice provisions of the Veterans Claims Assistance Act are not applicable and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 69 Fed. Reg. 25180 (Dec. 22, 2003). Further, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). The Veteran's claims for service connection for hearing loss and tinnitus were originally filed in on June 9, 2006, and were denied in a July 2007 rating decision. In the July 2007 decision, the RO noted a medical examination indicating hearing loss during the Veteran's National Guard service, nearly 10 years following separation from active duty. The RO concluded however, that because there was no evidence of an in-service disease or injury, that service connection was not warranted. The Veteran did not file a notice of disagreement to the July 2007 rating decision and no additional evidence pertinent to the issues was physically or constructively associated with the claims file within one year of the decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the July 2007 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. § 20.1105. The Veteran subsequently filed to reopen both claims. In January 2011, service connection for both conditions was granted, effective September 16, 2009, the date the Veteran filed to reopen the claims. The January 2011 rating decision was based on a finding of acoustic trauma during active duty from June 1981 to October 1981 based on the Veteran's military occupational specialty (MOS), which was of record at the time of the original RO decision, and a December 2010 VA examination report that associated the Veteran's hearing loss and tinnitus with his service. The Veteran maintains that he is entitled to an effective date of June 9, 2006, the date of his original claims for service connection. More specifically, the Veteran asserts that his original claims for service connection for hearing loss and tinnitus were denied because certain service records were unobtainable but that the claim was reopened in 2008 and "found" medical records were filed. The Veteran does not maintain, and the record does not indicate that he filed to reopen his service connection claims for hearing loss and tinnitus prior to September 16, 2009. Generally, the effective date for an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b). However, if VA receives relevant official service department records that existed but had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Under such circumstances, the effective date of the award based on the submitted service records is the date of the Veteran's original claim. 38 C.F.R. § 3.156(c)(3); see also Mayhue v. Shinseki, 24 Vet.App. 273, 279 (2011) ("[A] claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim.") In this context, service department records are relevant if they tend to prove one of the elements required for service connection. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Following the denial of the Veteran's service connection claims in July 2007, the RO obtained a line of duty report from the Veteran's National Guard service showing an injury to the Veteran's back. This report was relevant to the Veteran's contemporaneous claim for service connection for a back disability, but had no bearing on the Veteran's claims for service connection for hearing loss or tinnitus. Thus, while the line report was a newly received service department record, it was not relevant to the claims at issue herein, and is therefore not a justification for an earlier effective date under 38 C.F.R. § 3.156(c). While the Veteran's claim for a back disability was reopened and granted based on this newly located record, the claims for hearing loss and tinnitus were not reopened prior to 2009. The file does not contain any service department records that were in existence at the time of the 2007 rating decision that are relevant to the Veteran's hearing loss and tinnitus claims. As such, this appeal must be denied as the Veteran is in receipt of the earliest possible effective date allowed by law. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b). ORDER An effective date prior to September 16, 2009, for a grant of service connection for bilateral hearing loss is denied. An effective date prior to September 16, 2009, for a grant of service connection for tinnitus is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs