Citation Nr: 18159537 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 18-52 437 DATE: December 19, 2018 ORDER Entitlement to an effective date earlier than April 13, 2016, for the grant of service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than April 13, 2016, for the grant of service connection for tinnitus is denied. FINDINGS OF FACT 1. On April 13, 2016, VA received the Veteran’s fully developed claim to reopen a previously denied claim for compensation for bilateral hearing loss, and there was no unadjudicated formal or informal claim prior to that date. 2. On April 13, 2016, VA received the Veteran’s fully developed claim to reopen a previously denied claim for compensation for tinnitus, and there was no unadjudicated formal or informal claim prior to that date. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 13, 2016, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 2. The criteria for an effective date earlier than April 13, 2016, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1957 to January 1959. Initial Matters The Board notes that in an August 2017 and October 2018 correspondence, the Veteran revoked representation by the American Legion, and noted that he appoints Michael K. Banik, Attorney, as his representative. Though, by a December 2017 letter, the RO notified the Veteran and the attorney that this attorney was not listed as an accredited as a representative by VA’s Office of General Counsel. Under VA regulation, agents and attorneys who commence representation on or after June 23, 2008 must file an application for accreditation with VA’s Office of General Counsel (OGC). 38 C.F.R. § 14.629 (2017). A non-accredited attorney may, however, act on a one-time basis in a single claim if a statement is signed by the attorney and the claimant that no compensation will be charged or paid for the services. 38 C.F.R. § 14.630 (2017). There is no such record of a compensation agreement in the claims file; therefore, this exception is not applicable in this case. Since Attorney Banik did not file a zero-fee compensation agreement, and neither the Veteran nor the attorney responded to the December 2017 letters notifying them that the attorney was not accredited, the Board must conclude that the Veteran chose to represent himself, despite the Veteran’s subsequent indication that he wanted Attorney Banik to represent him. The Board additionally notes that in April 2018, August 2018, September 2018, and in a letter accompanying the October 2018 substantive appeal, he wanted a formal DRO hearing if the effective date is not granted by the RO. Nevertheless, on his substantive appeal, he declined an opportunity for an optional Board hearing. In this regard, the Board finds that assuming the Veteran has had the opportunity for a Board hearing and he declines such opportunity, there is no need to provide a DRO hearing. See Bowen v. Shinseki, 25 Vet. App. 250, 254 (2012), which supports a finding that the DRO request was subsumed by the opportunity to have a Board hearing. In Bowen, the CAVC held that when a veteran is denied a hearing before the RO, there is no due process violation if he or she is subsequently offered the opportunity for a hearing before the Board. Accordingly, a remand for an RO hearing is not necessary if a Board hearing has been offered, even if not conducted. Effective Date In April 2016, the Veteran filed a petition to reopen claims for bilateral hearing loss and tinnitus using the Fully Developed Claim (FDC) process; the claim is date stamped April 13, 2016. Under the FDC framework, a claim is submitted in a “fully developed” status, limiting the need for further development of the claim by VA. According to 38 U.S.C. § 5110(b)(2)(A), “the effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.” A claim for service connection submitted through the FDC process by definition meets the statutory requirement of “an original claim that is fully-developed.” See 38 U.S.C. § 5110. This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. However, 38 U.S.C. § 5110 (b)(2)(A) does not establish that the effective date for claims filed under the FDC process is automatically one year prior to the date of the filing of the formal claim for service connection. Instead, the statute states that the effective date shall be fixed in accordance with the facts found, so long as the date established by the facts is not earlier than one year prior to the date of the receipt of the application for service connection. Here, the Veteran filed his original claim for service connection for bilateral hearing loss and tinnitus in December 2007, which was denied in an October 2008 rating decision. The Veteran filed a timely notice of disagreement (NOD) in December 2008, and statement of the case (SOC) was issued in March 2010, and the Veteran timely perfected his appeal in April 2010. After a DRO hearing in June 2010, a supplemental statement of the case (SSOC) was issued in August 2010, and after additional evidence was associated with the claims file, an additional SSOC was issued in October 2010. Thereafter, in May 2012, the Board denied the Veteran’s service connection claims for bilateral hearing loss and tinnitus. Subsequently, in August 2012, the Veteran sought to reopen his claims for service connection for bilateral hearing loss and tinnitus, and in a July 2013 rating decision, the RO reopened and denied the claims. Nevertheless, during the same time, the Veteran appealed the Board’s May 2012 decision to the United States Court of Appeals for Veterans Claims (Court), and by an October 2013 Memorandum Decision, the Court vacated and remanded the Veteran’s claims for further development. Thereafter, in May 2014, the Board again denied the Veteran’s claims for service connection for bilateral hearing loss and tinnitus. The Veteran again appealed the Board’s May 2014 decision to the Court; however, by an October 2015 Memorandum Decision, the Court affirmed the Board’s May 2014 decision. The Court’s affirmation of the Board’s May 2014 decision rendered this decision final. The Veteran submitted correspondence, new medical evidence, as well as duplicate medical evidence in November 2015 and April 2016. As aforementioned, on April 13, 2016, VA received the Veteran’s petition to reopen using the FDC process, VA Form 21-526EZ. In an April 2018 correspondence attached to his NOD, the Veteran challenged the adequacy of prior VA examinations and described the progression of his hearing loss since service. He argued that the should be assigned an effective date of December 2007, the date of his original claim for compensation. Subsequently, in his October 2018 substantive appeal, the Veteran stated that his representative from the American Legion did not even share with him the reports of the VA examinations that were relied upon in denying his claim in the past and again challenged the adequacy of these examinations. While the Board sympathizes with the Veteran’s argument, as noted-above, he appealed the Board’s denials twice to the Court, and subsequent to his second appeal, the Court affirmed the Board’s denial. Notably, an unappealed decision of the RO or the Board becomes final and binding and is not subject to revision on the same factual basis in the absence of clear and unmistakable error. Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 3.105, 20.1400 (2017). Clear and unmistakable error (CUE) in prior decisions; however, has not been asserted in this case. Based on the foregoing, given that his claim was received on April 13, 2016, no earlier effective date is warranted. Although the regulations in effect prior to 2014 did allow for informal claims, there is nothing in the record that would qualify as such. The VA medical treatment records show that the Veteran complained of difficulty hearing and tinnitus for many years prior to filing his claim. However, the mere presence of medical evidence of a disability does not show an intent on the Veteran’s part to seek service connection and therefore does not constitute a claim; rather, the Veteran must assert a claim either expressly or impliedly. See Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (noting that although VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by claimant). Therefore, the Board declines to view any references to hearing loss in medical records prior to April 13, 2016, as a claim for VA compensation. Since no such prior claim had been denied, the VA medical records could not serve as a claim to reopen under the prior provisions of 38 C.F.R. § 3.157 (2014). There is otherwise no legal basis for the assignment of an effective date earlier than April 13, 2016, for the grant of service connection for bilateral hearing loss and tinnitus. LLOYD CRAMP Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel