Citation Nr: 1754549 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 15-34 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than November 12, 2013 for the award of service connection for bilateral hearing loss. 2. Entitlement to an effective date earlier than November 12, 2013 for the award of service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1956 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 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. In an October 2011 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal the decision and it became final. 2. In November 2013, the Veteran submitted a statement indicating an intent to reopen the claims for entitlement to service connection for bilateral hearing loss and tinnitus. 3. In June 2014, the RO issued a decision which reopened the Veteran's previously denied claims and granted service connection for bilateral hearing loss and tinnitus. 4. The RO assigned an effective date for the award of benefits for service-connected bilateral hearing loss and tinnitus of November 12, 2013, the date the Veteran's claim to reopen his claims for entitlement to service connection for these disabilities was received. CONCLUSIONS OF LAW 1. The October 2011 rating decision denying service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. The criteria for an effective date of February 28, 2011 for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400 (2017). 3. The criteria for an effective date of February 28, 2011 for the grant of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159 (b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist has been met. All identified VA and private medical evidence has been associated with the claims file. The Board finds that further action is unnecessary under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced as a result of the Board's adjudication of the issues below. Effective Dates The Veteran asserts that he is entitled to an earlier effective date for the grants of service connection for bilateral hearing loss and tinnitus. Specifically, the Veteran seeks an effective date of February 28, 2011 for the award of each of these benefits; which is the date he filed his original claim for service connection for bilateral hearing loss and tinnitus. Unless Chapter 38 of the United States Code specifically provides otherwise, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation 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 the later. See 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2017). An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in disability occurred within one year prior to the filing of the claim. See 38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. § 3.400(o)(2) (2017). A "claim" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2017). "Date of receipt" of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r) (2017). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b) (2017). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A review of the Veteran's electronic file reveals he filed a formal claim of entitlement to service connection for bilateral hearing loss and tinnitus on February 28, 2011. These claims were denied in an October 2011 rating decision. The Veteran and his representative were advised of the Veteran's rights to appeal this decision in the notification letter and VA Form 4107 Your Rights to Appeal Our Decision which were included with the rating decision. The Veteran did not appeal these decisions and they became final. In November 2013, the Veteran filed an informal claim to reopen his claims of entitlement to service connection for bilateral hearing loss and tinnitus. In support of his claim, the Veteran submitted treatment records from a private audiologist who opined that it was at least as likely as not that the Veteran's hearing loss and tinnitus were due to military noise exposure. Based on this evidence, the RO issued a rating decision in June 2014 which granted service connection for bilateral hearing loss and tinnitus, and assigned a 10 percent disability rating for each disability, effective November 12, 2013 which was the date of receipt of the claim to reopen. There is no record of evidence of a claim, informal claim, or expressed written intent to file a claim for service connection for bilateral hearing loss and tinnitus prior to November 12, 2013. The Veteran has not notified VA of any such evidence. Generally, the effective date for service connection is not based on the date a disability began, but rather on the date of receipt of the claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). As there was a prior final denial of the Veteran's claims for service connection for bilateral hearing loss and tinnitus, and the claim to reopen was received on November 12, 2013, VA laws and regulations preclude the assignment of effective dates earlier than November 12, 2013 for the grant of service connection for these disabilities. Therefore, the appeal must be denied. See 38 U.S.C.A.§ 5110(a) (West 2014); 38 C.F.R. § 3.400 (2017). There is no reasonable doubt to be resolved as to these issues. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than November 12, 2013 for the grant of service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than November 12, 2013 for the grant of service connection for tinnitus is denied. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs