Citation Nr: 1805868 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 17-31 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES Entitlement to an effective date prior to July 26, 2000, for the award of service connection for chronic otitis media of the left ear. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1958 to September 1960 and October 1961 to August 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2017, the Veteran testified at a Board hearing; a transcript of that hearing is of record. 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. In an April 5, 1989, decision, the Board denied entitlement to service connection for chronic otitis media of the left ear. 2. On July 26, 2000, the Veteran submitted a petition to reopen his claim for service connection for chronic otitis media of the left ear. CONCLUSION OF LAW The criteria are not met for an effective date prior to July 26, 2000, for the award of service connection for chronic otitis media of the left ear. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(q)(2) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran originally filed a claim of entitlement to service connection for left ear problems in February 1987. The RO denied entitlement to service connection for chronic left ear problems in a July 1987 rating decision. The Veteran appealed this decision and in a final, April 5, 1989, decision the Board denied entitlement to service connection for chronic left ear otitis media. On July 26, 2000, the Veteran submitted a claim to reopen service connection for left ear otitis media. In March 2001, the RO declined to reopen the claim of entitlement to service connection for chronic left ear otitis media. The Veteran was notified of this decision and of his appellate rights by letter dated March 22, 2001. He did not appeal that decision. The Veteran next sought to reopen his claim in June 2005. In October 2005, the RO again declined to reopen the claim of entitlement to service connection for chronic left ear otitis media. The Veteran continued to submit evidence after the October 2005 RO decision, and then did formally appeal an August 2006 decision denying service connection for chronic left ear otitis media. In a November 2010 decision, the Board reopened the claim and service connection for chronic left ear otitis media was granted. A June 2011 RO decision implemented the Board's award of service connection for chronic left ear otitis media and assigned an effective date of June 14, 2005. In a November 2011 NOD, the Veteran appealed the effective date of the award of service connection. He asserted that the March 2001 rating decision that declined to reopen his claim contained clear and unmistakable error and requested an effective date for his award of service connection in 2001. In August 2015, the Veteran representative requested an effective date of July 26, 2000, for the award of service connection for chronic left ear otitis media, the date of the Veteran's claim that was denied by the March 2001 rating decision. In an August 2015 rating decision, the RO granted an effective date of July 26, 2000 for the award of service connection for chronic left ear otitis media (in essence finding CUE in the March 2001 rating decision). The Veteran perfected an appeal concerning the effective date. In his December 2016 notice of disagreement, the Veteran requested an effective date in February 1987 for the award of service connection for chronic left ear otitis media. He stated that there was clear and unmistakable error in the previous denial of his claim (presumably the July 1987 RO rating decision). However, during a June 2017 DRO conference, the Veteran withdrew his claim of CUE in the prior rating decision. Instead, he asserted that he was never told to apply for benefits when he separated from service and another Veteran told him to apply in 1987. He felt that he should be awarded an effective date of at least 1987. At his hearing before the Board in November 2017, the Veteran requested that he be awarded an effective date in 1959 for the award of service connection for chronic left ear otitis media. He also testified that he first filed a claim for service connection for otitis media in February 1987. He stated that he appealed that decision and thought that his appeal had been ongoing since that time. Except as otherwise provided, the effective date of an evaluation and award of 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 later. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). As noted above, the Veteran originally filed a claim of entitlement to service connection for left ear problems in February 1987. The RO denied entitlement to service connection for chronic left ear problems in a July 1987 rating decision. The Veteran perfected an appeal. In April 1989, decision the Board denied entitlement to service connection for chronic left ear otitis media. The April 5, 1989 Board decision is final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Further, the Board points out that February 1987 RO rating decision was subsumed by the April 1989 Board decision, which addressed the same issue. Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1998). When the rating decision is deemed subsumed by a supervening Board decision, then as a matter of law the rating decision cannot be the subject of a claim of CUE. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). In any event, the Veteran has indicated that he does not want to pursue the matter of CUE. Following the final April 1989 Board decision, the Veteran submitted a petition to reopen his claim for service connection for otitis media of the left ear on July 26, 2000. He does not state that he submitted an earlier petition after the April 5, 1989 Board decision was issued, and the record does not show otherwise. Between April 5, 1989 and July 26, 2000, no communication or action was received from the Veteran indicating an intent to apply for service connection for otitis media of the left ear. 38 C.F.R. §§ 3.1(p), 3.155(a); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). As noted above, once a previous decision has become final, the earliest effective date of service connection is the date of the petition to reopen rather than the date of the initial claim. See U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2). Accordingly, as the date of the Veteran's reopened claim of entitlement to service connection for otitis media of the left ear is July 26, 2000, this is the earliest date that may be assigned for the award of service connection. Thus, the appeal of the effective date assigned must be denied as a matter of law, and the benefit-of-the-doubt rule does not apply. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law); see also 38 U.S.C.A. § 5107 (2012); 38 C.F.R. § 3.102 (2017). While the Veteran asserts that he was never told to file for service connection when he separated from service, and while the Board is sympathetic to the Veteran; the effective date for awards of service connection is governed by provisions of 38 C.F.R. § 3.400. Regulations are binding on all who seek to come within their sphere, "regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance." Fed. Crop Ins. Corp v. Merrill, 332 U.S. 380, 385 (1947). Accordingly, an effective date earlier than July 26, 2000, for service connection for chronic otitis media of the left ear is not warranted. ORDER Entitlement to an effective date prior to June 26, 2000, for the award of service connection for chronic otitis media of the left ear is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs