Citation Nr: 1804107 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-16 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an effective date earlier than April 10, 2014 for the grant of service connection for bilateral hearing loss. 2. Entitlement to an effective date earlier than April 10, 2014 for the grant of service connection for tinnitus. 3. Entitlement to service connection for additional residuals of a right eye injury secondary to service-connected macular scarring, right eye, residual of injury (right eye disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned Veterans Law Judge in December 2017. A transcript of this hearing is associated with the claims file. During the December 2017 Board hearing, the Veteran raised the contention that there was clear and unmistakable error in an August 1992 rating decision that originally denied service connection for hearing loss. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ) and therefore the Board does not have jurisdiction over it. The Veteran and his representative are advised that his statement does not meet the standards of a complete claim under 38 C.F.R. § 3.150(a). The AOJ should notify the Veteran and his representative as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. Additionally, during the Board hearing, it was discussed that service connection for right eye disability was before the Board. However, it was later revealed during the hearing that the Veteran had been granted service connection for right eye disability in a January 2017 rating decision. Given that the Veteran was specifically informed that the issue was on appeal and since he provided extensive testimony on the issue, the Board finds that the issue of entitlement to service connection for additional residuals of a right eye injury secondary to service-connected right eye disability is within the Board's appellate jurisdiction. See Percy v. Shinseki, 23 Vet. App. 37 (2009). The issue of entitlement to service connection for additional residuals of a right eye injury secondary to service-connected right eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran filed an original service connection claim for hearing loss in June 1992. The AOJ denied the service connection claim for hearing loss in an August 1992 rating decision. A September 1992 notification letter was sent to the Veteran's last correct known address at that time and notified the Veteran about his appellate rights. He did not submit a notice of disagreement to the August 1992 rating decision nor was new and material evidence received within one year after notification of the rating decision. 2. An April 2015 rating decision granted service connection for hearing loss and tinnitus, effective April 10, 2014, the date the service connection claim was received. CONCLUSIONS OF LAW 1. The August 1992 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The criteria for the assignment of an effective date earlier than April 10, 2014 for the grant of service connection for bilateral hearing loss and tinnitus have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.114, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Unless specifically provided otherwise in the statute, the effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). The effective date for a grant of service connection for a reopened claim after a final prior disallowance shall be the date of the receipt of the application to reopen or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In the instant case, an April 2015 rating decision granted service connection for bilateral hearing loss and tinnitus effective April 10, 2014. The Veteran timely disagreed with the assigned effective date. At times during the appeal, the Veteran contends that he is entitled to an effective date from the 1980s as this is when he believes he filed his original service connection claim for hearing loss. A review of the record reveals that he filed service connection claims for an eye disability and a back disability in December 1980. The December 1980 claim did not include a service connection claim for hearing loss. Moreover, the December 1980 claim did not indicate that he was claiming service connection for hearing loss in any way. Therefore, the December 1980 claim cannot be construed as a service connection claim for a hearing loss disability or ear disability. The record reveals that the Veteran first submitted a service connection claim for hearing loss in June 1992. An August 1992 rating decision denied the service connection claim. His service treatment records and a June 1992 private audiology report were associated with the claims file at the time of the rating decision. The Veteran was notified of the rating decision and his appellate rights in September 1992. The Veteran did not submit a notice of disagreement to this rating decision nor was new and material evidence received within one year after notification of the rating decision. The August 1992 rating decision became final. The Veteran contends that he was not timely informed of the August 1992 rating decision and that he did not know about the denial until his representative recently informed him of it. A review of the claims file reveals that the September 1992 letter notifying the Veteran of the denial of service connection and his appellate rights was sent to his correct known address at that time. Moreover, the September 1992 notification letter was not returned to VA as undeliverable. Accordingly, the Board finds that the Veteran was properly informed of his appellate rights in September 1992 and that he did not timely submit a notice of disagreement. Additionally, no new and material evidence was received by VA within one year of the August 1992 rating decision. The August 1992 rating decision specifically considered a June 8, 1992 audiology report from a private provider. An additional medical record from this private provider, dated June 1992, was submitted by the Veteran in August 2017. However, the addition of this June 1992 medical record does not impact the finality of the August 1992 rating decision as the June 1992 medical record is from a private provider. Therefore, the June 1992 medical record was not within the constructive possession of VA at the time of the August 1992 rating decision. The Veteran additionally contends that he is entitled to an effective date of the original service connection claim because he was not provided a hearing examination upon separation from service, he was not provided an examination when he submitted his service connection claim for hearing loss, and he met all elements of service connection when he filed his original claim for service connection for hearing loss. The Board acknowledges these contentions; however, such contentions are not grounds for an earlier effective date as the August 1992 rating decision became final when the Veteran did not submit a timely notice of disagreement and no new and material evidence was received within one year of notification of the rating decision. Thus, despite these various contentions, the August 1992 rating decision is final. Pursuant to applicable statutes, regulations, and case law, the Veteran's prior service connection claim for hearing loss cannot serve as the basis of the current effective date as the prior rating decision denying the service connection claim became final. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. See also Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). VA regulations also provide that when VA receives relevant official service department records that existed and had not been associated with the claims file at the time of a prior final decision, VA will reconsider the prior decision without requiring new and material evidence. 38 C.F.R. § 3.156(c). Here, service personnel records were associated with the claims file after the August 1992 rating decision. However, these service personnel records are not relevant to the service connection claim for hearing loss and tinnitus. The August 1992 rating decision denied the service connection claim for hearing loss on the basis that the service treatment records were negative for treatment or diagnosis of hearing loss and that the Veteran had a normal whisper test at separation from service. As the service personnel records do not include treatment or diagnosis of hearing loss, these newly associated service personnel records are not relevant to the claim. Accordingly, the provisions of 38 C.F.R. § 3.156(c) do not apply. Moreover, VA received no communication from the Veteran that could be construed as a service connection claim for a hearing loss disability or ear disability since the final August 1992 rating decision until April 2014. The first communication regarding service connection for hearing loss was received in April 2014 and serves as the current effective date for the grant of service connection for hearing loss and tinnitus. An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but rather on the date that the application upon which service connection was eventually awarded was filed with VA or the date entitlement arose, whichever is later. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Given that the August 1992 rating decision is final, the AOJ has assigned the earliest possible effective date for the grant of service connection for bilateral hearing loss and tinnitus. As such, this appeal must be denied because the AOJ has already assigned the earliest possible effective date provided by law. ORDER An effective date earlier than April 10, 2014 for the grant of service connection for bilateral hearing loss is denied. An effective date earlier than April 10, 2014 for the grant of service connection for tinnitus is denied. REMAND As discussed above, the Veteran provided testimony during the Board hearing regarding additional residuals secondary to his service-connected right eye disability. It appears that he contends that he has a scar of the eyelid and dry eyes secondary to the service-connected right eye disability. Accordingly, the Board finds that a VA examination is required to determine whether the Veteran has any additional residuals secondary to the service-connected right eye disability. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for an appropriate VA examination to determine whether the Veteran has additional residuals of the right eye disability. The examiner should examine the Veteran's right eye and determine whether the Veteran has any additional right eye residuals that are at least as likely as not caused or aggravated by the service-connected right eye disability, to include but not limited to dry eye and scar of right eyelid. 2. Then, adjudicate the appeal. If the benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs