Citation Nr: 1752314 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 17-42 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an earlier effective date prior to June 25, 2014 for the grant of service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1956 to May 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection and a 100 percent rating for bilateral hearing loss, effective June 25, 2014. The Veteran appealed for an earlier effective date. The Board notes that the Veteran did not request a hearing. Based on the November 2017 appellant's brief, it appears that the Veteran is attempting to advance an argument of a clear and unmistakable error (CUE) with the prior VA decisions however, there was not sufficient specificity. Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium); aff'd sub nom., Andre v. Principi, 201 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than mere disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). By contrast, broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error cannot meet the specificity required to render a claim of CUE meritorious. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Furthermore, any breach by VA of its duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete record rather than an incorrect one. See e.g., Tetro v. Gober, 14 Vet. App. 100, 109 (2000). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's prior claim of service connection for bilateral hearing loss was denied in a January 2010 Board decision. The Veteran did not perfect an appeal of this decision. 2. After the final January 2010 decision, no formal or informal claim for service connection for bilateral hearing loss was received from the Veteran prior to June 25, 2014. CONCLUSION OF LAW The criteria are not met for an effective date earlier than June 25, 2014 for the grant of service connection for bilateral hearing loss. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran contends that he is entitled to an effective date earlier than June 25, 2014, for the award of service connection for bilateral hearing loss. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation, i.e., service connection, 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)(i). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved CUE. 38 C.F.R § 3.105 (a). The United States Court of Veterans Appeals (Court) held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does 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." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. But the dismissal should be without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). The Board notes that the Veteran's original claim for service connection for bilateral hearing loss was denied by a May 1995 rating decision. The Veteran submitted additional evidence in May 1995 and a May 1995 statement of the case (SOC) was issued. His June 1996 substantive appeal (VA Form 9) was timely filed and a February 2000 Board decision denied his claim for service connection for bilateral hearing loss. He did not appeal the February 2000 Board decision. Rating decisions in June 2004 and September 2004 did not reopen the claim and denied service connection for bilateral hearing loss for a lack of new and material evidence to substantiate the claim. In October 2004, the Veteran submitted a notice of disagreement (NOD) and a February 2005 SOC denied the claim for a lack of new and material evidence. In a July 2007 decision, the Board reopened the claim of service connection for bilateral hearing loss and remanded the claim for additional development. A January 2010 Board decision denied service connection for bilateral hearing loss. Therefore, the January 2010 rating decision, as far as it concerns the effective date for service connection, is final. In an October 2014 rating decision, the RO granted service connection for bilateral hearing loss, and assigned a 100 percent initial disability rating effective June 25, 2014, the date of receipt of the claim. In November 2014, the Veteran requested an earlier effective date. A March 2017 rating decision denied an earlier effective date as no evidence was submitted showing entitlement under the law prior to June 25, 2014. Later the same month, the Veteran submitted a NOD. A June 2017 SOC was issued and in August 2017 the Veteran submitted a VA Form 9 and requested payment from 1994 as back payment. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, no effective date for the award of service connection for bilateral hearing loss earlier than June 25, 2014, is assignable, the claim for an earlier effective date must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An earlier effective date prior to June 25, 2014 for the grant of service connection for bilateral hearing loss is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs