Citation Nr: 1805160 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-28 866A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an effective date earlier than November 18, 2009, for the grant of service connection for melasma. 2. Entitlement to an effective date earlier than November 18, 2009, for the grant of service connection for sensorineural hearing loss. 3. Entitlement to an effective date earlier than November 18, 2009, for the grant of service connection for chronic bronchitis. ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Veteran testified before a Decision Review Officer (DRO) in November 2011. A copy of the transcript is of record. The Veteran requested a hearing before the Board; a hearing was scheduled for March 2016. The Veteran failed to appear for his scheduled hearing, accordingly the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (d) (2017). In May 2016, the Board granted service connection for a back, cervical spine, right shoulder, left shoulder, right knee, left knee, right ankle, left ankle, right foot, left foot, left wrist, left thumb, and sinusitis disabilities. Moreover, the Board remanded the issues of service connection for an eye disability, and service connection for a buttock disability. Thereafter, in an August 2017 rating decision, the RO granted service connection for an eye disorder and granted service connection for right and left lower extremity radiculopathy (claimed as buttocks disability). As such, those issues are no longer before the Board for consideration. In May 2016, the Board also determined that there were pending clear and unmistakable error (CUE) claims that were inextricably intertwined with the Veteran's claims for earlier effective dates of the award of service connection for melasma, chronic bronchitis, and sensorineural hearing loss. Following the Board's remand, the RO denied the CUE claims in a June 2016 rating decision. The Veteran has not filed a notice of disagreement with the June 2016 rating decision; as such, those issues are not before the Board. FINDINGS OF FACT 1. In unappealed April 1995 and August 2004 rating decisions, the RO denied the claims for service connection for hearing loss, bronchitis, and discoloration of the skin. 2. The Veteran did not initiate an appeal to the April 1995 and August 2004 rating decisions, and they became final. 3. On November 18, 2009, the Veteran filed claims to reopen service connection for melasma (discoloration of the skin), hearing loss, and bronchitis. 4. In November 2010 rating decisions, the RO granted service connection for melasma, hearing loss, and bronchitis, effective November 18, 2009. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than November 18, 2009, for the grant of service connection for melasma have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). 2. The criteria for an effective date earlier than November 18, 2009, for the grant of service connection for hearing loss have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). 3. The criteria for an effective date earlier than November 18, 2009, for the grant of service connection for bronchitis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Laws and Analysis for Earlier Effective Date Claims With regard to the claim for an earlier effective date for the award of service connection for melasma, the Veteran was initially denied service connection for discoloration of the face in an August 2004 rating decision. The Veteran did not appeal the August 2004 decision and it became final. 38 C.F.R. §§ 20.302 (b), 20.1103. With regard to the claims for earlier effective dates for the awards of service connection for chronic bronchitis and sensorineural hearing loss, the Veteran was initially denied service connection in an April 1995 rating decision. The Veteran did not appeal the April 1995 decision and it became final. 38 C.F.R. §§ 20.302 (b), 20.1103. Thereafter, on November 18, 2009, the Veteran filed claims to reopen service connection for melasma (skin discoloration), hearing loss, and bronchitis and the claims were granted by the RO in November 2010 rating decisions. At that time, the RO assigned effective dates of November 18, 2009, the date of the Veteran's claims to reopen service connection for melasma, hearing loss, and bronchitis. The Veteran is challenging the effective dates for the awards of service connection. The laws and regulations governing effective dates establish that unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160 (e). In this case, since the Veteran did not file a timely notice of disagreement with the RO's April 1995 and August 2004 rating decisions, they became final, and are not subject to revision in the absence of CUE in the decisions. 38 U.S.C. §§ 5109A; 7104; Rudd v. Nicholson, 20 Vet. App. 296 (2006). Notably, motions for CUE in the April 1995 and August 2004 rating decisions have been denied by the RO in a June 2016 rating decision and have not been appealed by the Veteran. Thus, the April 1995 and August 2004 rating decisions are a legal bar to effective dates prior to the date of the claims to reopen the issues of service connection for a melasma, hearing loss, and bronchitis. The earliest date after the April 1995 and August 2004 rating decisions that the Veteran expressed intent to reopen his claims for service connection is November 18, 2009, which is the presently assigned effective date. Under the controlling law and regulations outlined above, the award of compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400 (q)(2), (r). Thus, the November 18, 2009, date of claim is the appropriate effective date, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. 38 C.F.R. § 3.400. Accordingly, the claims must be denied. See 38 C.F.R. § 3.400 (q)(2), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). ORDER An effective date earlier than November 18, 2009, for the grant of service connection for melasma is denied. An effective date earlier than November 18, 2009, for the grant of service connection for chronic bronchitis is denied. An effective date earlier than November 18, 2009, for the grant of service connection for sensorineural hearing loss is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs