Citation Nr: 18155627 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 17-18 202 DATE: December 4, 2018 ORDER 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss is dismissed. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus is dismissed. 3. Entitlement to an earlier effective date prior to June 20, 2016 for the grant of service connection for coronary artery disease associated with herbicide exposure is denied. FINDINGS OF FACT 1. In July 2018, prior to the promulgation of a decision in the appeal, the Veteran submitted a statement which documents his desire to withdraw his appeal regarding hearing loss and tinnitus. 2. The Veteran’s claim of entitlement to service connection for a heart condition was previously denied within a February 2013 rating decision after which the Veteran was notified of the determination and his appeal rights; however, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period, and there has been no finding of clear and unmistakable error (CUE) in the February 2013 rating decision. 3. The Veteran’s petition to reopen his claim for service connection for coronary artery disease was received on June 20, 2016. 4. There is no communication of record prior to June 20, 2016, that can be construed as a formal or informal claim to reopen the previously denied claim of entitlement to service connection for a heart condition (later specifically claimed as coronary artery disease). CONCLUSIONS OF LAW 1. The criteria for withdrawal of a petition to reopen a claim of entitlement to service connection for hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of a petition to reopen a claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 3. The February 2013 rating decision that denied service connection for a heart condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 4. The criteria for an earlier effective date prior to June 20, 2016 for the grant of service connection for coronary artery disease associated with herbicide exposure have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1955 to May 1975. To the extent that the Veteran’s March 2017 notice of disagreement (NOD) simultaneously initiated an appeal regarding both the effective date for the grant of service connection and the disability rating assigned for coronary artery disease, the Board is mindful that a subsequent July 2017 rating decision granted an increased 100 percent disability rating for coronary artery disease, effective March 31, 2017. Thus, the Veteran’s increased rating claim for coronary artery disease has been fully granted as March 31, 2017. Ordinarily, as the July 2017 rating decision did not constitute a full grant of the benefit sought for the initial rating period prior to March 31, 2017, the initial rating matter would remain in appellate status; however, the Veteran’s October 2017 Form 9 substantive appeal specifically limited his appeal to the issue of an earlier effective date prior to June 20, 2016 for the grant of service connection for coronary artery disease. Moreover, neither the Veteran nor his representative has since indicated a desire to continue to appeal the initial rating assigned for his coronary artery disease prior to March 31, 2017. As such, the Board finds that the Veteran’s appeal with respect to an increased rating for coronary artery disease has been addressed to the Veteran’s satisfaction, and the remaining issue on appeal is properly limited to the effective date assigned for the initial grant of service connection for coronary artery disease. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In July 2018, prior to the promulgation of a decision in the appeal, the Veteran submitted a statement which documents his desire to withdraw his appeal regarding hearing loss and tinnitus. Given the Veteran’s request, there remain no allegations of errors of fact or law for appellate consideration with respect to his petition to reopen his previously denied claims of entitlement to service connection for hearing loss and tinnitus. Accordingly, the Board does not have jurisdiction to review these matters, and they are dismissed. 3. Entitlement to an earlier effective date prior to June 20, 2016 for the grant of service connection for coronary artery disease associated with herbicide exposure. The Veteran seeks entitlement to an earlier effective date prior to June 20, 2016 for the grant of service connection for coronary artery disease associated with herbicide exposure. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 (2012). The proper effective date for claims based on new and material evidence (other than service department records) received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later; similarly, the effective date based on a reopened claim is also the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(1)(ii) (2017); 38 C.F.R. § 3.400(r) (2018). The Veteran’s initial claim of entitlement to service connection for a heart condition was submitted in May 2011 and eventually denied within a February 2013 rating decision, after which the Veteran was notified of the determination and his appeal rights; however, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. Moreover, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the February 2013 rating decision. 38 C.F.R. § 3.156(c) (2018). As such, the February 2013 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). Neither the Veteran nor his representative has argued that there was any formal or informal claim of entitlement to service connection from the time of the prior final February 2013 rating decision and his June 2016 petition to reopen. Rather, the essence of their argument is that the proper effective date for grant of service connection for coronary artery disease should relate back to his previously denied May 2011 claim. Specifically, the Veteran has pointed out that his claim was previously denied due to a lack of evidence to support his active service in Vietnam, while the subsequent grant of his claim was based upon a buddy statement received by VA in November 2016 reporting his service in Vietnam, as well as review of service treatment records which were previously associated with the claims file that indicated the Veteran underwent an examination prior to flying to Vietnam. While the Board is sympathetic to the Veteran, previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). Significantly, neither the Veteran nor his representative has raised or pleaded a CUE claim with specificity. Accordingly, the earliest possible effective date is June 20, 2016; the date that the Veteran’s petition to reopen his previously denied claim of entitlement to service connection for coronary artery disease was received. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. (Continued on the next page)   Given the above, there is no reasonable doubt to be resolved, and the claim of entitlement to an earlier effective date prior to June 20, 2016 for the grant of service connection for coronary artery disease associated with herbicide exposure claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel