Citation Nr: 1627551 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 12-02 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable rating for service-connected bilateral hearing loss. 2. Entitlement to an effective date earlier than March 22, 2010, for the grant of service connection for bilateral hearing loss and tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from April 1966 to April 1968. This matter comes before the Board from a November 2010 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issues on appeal. The issue of entitlement to a compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's claim for service connection for bilateral hearing loss and tinnitus was received on March 22, 2010. CONCLUSIONS OF LAW An effective date earlier than March 22, 2010, for the grant of service connection for bilateral hearing loss and tinnitus is denied. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). For the issues decided in the instant document, a pre-adjudication notice letter regarding the Veteran's initial service connection claims was sent to him in August 2010, prior to the decision on appeal. With regard to the appeal for earlier effective dates for the award of service connection for bilateral hearing loss and tinnitus, in cases such as this, 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, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. VA has obtained all identified and available service and post-service treatment records; further, it appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. No further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background and Analysis The Veteran contends he should be entitled to an effective date earlier than March 22, 2010, for the grant of service connection for bilateral hearing loss and tinnitus. He contends the earlier effective date is warranted because his hearing loss began during his time in the military and has been getting worse since then. He alternatively contends he should be granted an earlier effective date because treatment records show that he had hearing loss as early as 1983 and that VA gave him hearing aids in 2002. Generally, the effective date of an award of compensation based on an original claim 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 2014); 38 C.F.R. § 3.400 (2015). 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) . VA must 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. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 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. Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). However, 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). At the time of this appeal, 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. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). However, 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 (1998). The essential elements for 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). Here, the Veteran filed his initial claim for service connection for bilateral hearing loss and tinnitus on March 22, 2010. There were no earlier communications contained in the claims file. Accordingly, the claims were not received within one year after his separation from service. Thus, the date of receipt of claim is March 22, 2010. The date of entitlement is October 28, 2010, the date of the VA examination in which an audiologist linked the Veteran's hearing loss and tinnitus to military service. Accordingly, the later of the two dates in October 28, 2010, and an effective date prior to March 22, 2010 is not warranted. Although the Veteran contends he should be entitled to an effective date back to service when the hearing loss began, to 1983, when VA records show he had hearing loss, or to 2002, when VA gave him hearing aids, there is no earlier claim filed. Because service connection had not been granted prior to March 2010, "the mere receipt of medical records [prior to that date] cannot be construed as an informal claim [under § 3.157]." Lalonde v. West, 12 Vet. App. 377, 382 (1999). The mere existence of a disability does not constitute a claim for service connection for such disability. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Even if, however, entitlement to service connection for hearing loss and/or tinnitus may have arisen prior to March 2010, the effective date of the award must be the later of the date of receipt of the claim or the date entitlement arose. Thus, the Board concludes that an effective date earlier than March 22, 2010, for the grant of service connection for bilateral hearing loss and tinnitus, is not warranted. ORDER An effective date earlier than March 22, 2010, for the grant of service connection for bilateral hearing loss and tinnitus, is denied. REMAND Remand is required regarding the claim for a compensable rating for the service-connected bilateral hearing loss in order to obtain a current examination. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). In a June 2016 informal hearing presentation, the Veteran, through his representative, alleged that his bilateral hearing loss had progressively worsened since he was last afforded a VA examination in October 2010. Accordingly, the Veteran must be afforded a VA examination to assess the current severity of his bilateral hearing loss. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his bilateral hearing loss. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. All studies deemed appropriate in the examiner's medical opinion should be performed, and all findings should be set forth in detail. The examiner should utilize the appropriate Disability Benefits Questionnaire and should comment on the functional effects of the hearing loss. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs