Citation Nr: 18140036 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-19 528 DATE: October 2, 2018 ORDER Entitlement to an effective date prior to December 8, 2004, for the award of service connection for bilateral hearing loss is denied. REMANDED Entitlement to an effective date prior to May 3, 2017, for the grant of a 70 percent rating for unspecified anxiety disorder and uncomplicated bereavement is remanded. FINDINGS OF FACT 1. On December 8, 2004, the Veteran submitted an informal claim for entitlement to service connection for bilateral hearing loss. 2. The RO awarded service connection for bilateral hearing loss in a March 2008 rating decision and assigned a noncompensable disability rating with an effective date of December 8, 2004, the date the informal claim for bilateral hearing loss was received. 3. Prior to December 8, 2004, VA did not receive or otherwise possess any document that can reasonably be construed as a formal or informal claim for VA benefits for bilateral hearing loss. CONCLUSION OF LAW The criteria for an effective date prior to December 8, 2004, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the Board in July 2017. Earlier Effective Date – Bilateral Hearing Loss The Veteran submitted a VA Form 21-4138 received on December 8, 2004, and indicated that he desired to file a claim for service connection for bilateral hearing loss. The Veteran was granted service connection for bilateral hearing loss in a March 2008 rating decision, and awarded a noncompensable percent rating effective December 8, 2004. The Veteran submitted a notice of disagreement and disagreed with the effective date for the grant of service connection for bilateral hearing loss. Under applicable criteria, the effective date of an award of compensation based on an original claim (received beyond one year after service discharge) or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application thereof. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date for an award of direct service connection (received more than a year after discharge) will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2). In December 2004, more than forty years after separating from service, the Veteran first filed a claim for bilateral hearing loss. As noted, the Veteran was granted service connection for bilateral hearing loss and assigned a noncompensable rating effective December 8, 2004, the date he filed an informal claim for service connection for bilateral hearing loss. The Veteran disagreed with the rating and effective date assigned. Specifically, he avers that he first complained about hearing loss at VA in 1970. Of note, the claim for a higher rating for bilateral hearing loss was denied in an April 2010 Board decision. No earlier document is of record that might be interpreted as an informal claim for a bilateral hearing loss disability. Although the Veteran submitted a formal claim for benefits in June 1970 and an informal claim for benefits in December 1970, none of the earlier filed claims for benefits specifically included a request for service connection for bilateral hearing loss. Specifically, the June 1970 Application for Compensation or Pension (formal claim) referenced a disability of the legs and pneumonia and the December 1970 VA Form 21-4138 (informal claim) referenced a disability of the legs. When the Veteran submitted the December 1970 informal claim, the Veteran also submitted medical evidence which included reference to posttraumatic hypertension and that issue was also considered by the RO. However, neither claim included reference to bilateral hearing loss. A complete claim must identify the benefit sought. See 38 C.F.R. § 3.160. Here, the Veteran’s formal and informal claims filed prior to December 8, 2004, specifically included claims for benefits other than bilateral hearing loss. The Veteran did not specifically raise a formal or informal claim for bilateral hearing loss until he submitted the VA Form 21-4138 on December 8, 2004, and indicated that he was claiming entitlement to service connection for bilateral hearing loss. Although the Veteran testified that he submitted a claim for bilateral hearing loss in 1970, there is no evidence suggesting that he tried to file for service connection for hearing loss prior to December 8, 2004. There is similarly no indication that the Veteran ever filed a claim within a year of separation. As noted, the Veteran separated from service in 1968 and his claim for service connection for bilateral hearing loss was not received until 2004. As discussed, no earlier document can be construed as a formal or informal claim for service connection for bilateral hearing loss. VA regulations direct that the effective date is the latter of the date of receipt of the claim and the date entitlement arose. It is clear in the regulations that service connection for an original claim shall not be earlier than the date of receipt of the application. In this case, the earliest date an informal claim for benefits was received was on December 8, 2004, the effective date of service connection. As such, the criteria for an earlier effective date for the grant of service connection for bilateral hearing loss have not been met, and the Veteran’s claim is accordingly denied. Duty to Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Regarding records, VA must obtain “records of relevant medical treatment or examination” at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records exist and all pertinent records have been obtained. REASONS FOR REMAND Earlier Effective Date – Anxiety Disorder The Board notes that in a November 2017 rating decision, the Veteran was granted a 70 percent rating for May 3, 2017, for unspecified anxiety disorder and uncomplicated bereavement. The Veteran submitted a VA Form 21-0958 received in May 2018 and expressed disagreement with the effective date assigned for the 70 percent rating for unspecified anxiety disorder and uncomplicated bereavement. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26 (2018). Thus, remand for issuance of a SOC on this issue is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matter is REMANDED for the following action: A statement of the case, containing all applicable laws and regulations, on the issue of entitlement to an effective date prior to May 3, 2017, for the grant of a 70 percent rating for unspecified anxiety disorder and uncomplicated bereavement must be issued, and the Veteran should be advised of the time period in which to perfect his appeal. Only if the Veteran’s appeal as to this issue is perfected within the applicable time period should this issue be returned to the Board for appellate review. The RO/AMC should not return the claims file to the Board until after either (1) the Veteran perfects his appeal as to his claim for entitlement to an effective date prior to May 3, 2017, for the grant of a 70 percent rating for unspecified anxiety disorder and uncomplicated bereavement, or (2) the time period for doing so expires, whichever occurs first. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel