Citation Nr: 19106936 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-26 884 DATE: January 29, 2019 ORDER Entitlement to an effective date earlier than February 12, 2013, for the award of service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s request to reopen a previously denied service connection claim for bilateral hearing loss was received by VA on February 12, 2013; and, an award of service connection has been assigned effective from that date. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than February 12, 2013, for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty as a New Philippine Scout from July 1946 to April 1947. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by the Manila, The Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA). Although in a January 2019 brief the Veteran’s representative included a service connection claim for tinnitus as a matter for review, this matter has not been addressed in a rating decision and has not been developed for appellate review. 1. Entitlement to an effective date earlier than February 12, 2013, for the award of service connection for bilateral hearing loss. VA law provides that the effective date for an award of disability compensation for a reopened claim shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(r) (2018). VA regulations provide that the terms claim and application mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (effective prior to March 24, 2015). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2018). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board, however, is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). A VA failure of a duty to assist a veteran or even the existence of grave procedural error do not render a VA decision non-final. See Cook v. Principi, 318 F.3d 1334, 1348 (Fed. Cir. 2002). The Veteran contends that an effective date from November 18, 2010, is warranted for the award of service connection for bilateral sensorineural hearing loss. He also contends, in essence, that a VA Form 21-526 received by VA on September 23, 2011, should be accepted as a request to reopen the claim. However, of record is a November 28, 2011 memorandum stating that the VA Form 21-526 had been lost. The memorandum goes on to state that when a new claim is received establish the effective date of the duplicate claim based upon the date of receipt of the lost claim. There is no indication in the file as to when the September 23, 2011, VA Form 21-526 was located and added to the record. The application includes no reference to hearing loss. VA records show the Veteran’s original application for service connection compensation including poor hearing was received on September 28, 2010. The RO denied entitlement to service connection for poor hearing and notified the Veteran of the determination and his appellate rights by correspondence dated August 2, 2011. The basis for the decision was the absence of evidence demonstrating a present hearing loss disability was causally related to service. On September 22, 2011, the RO notified the Veteran in response to his correspondence of September 2011, that he had been notified of the August 2011 denial of his claim and that he had one year from the date of that notice to submit additional evidence in support of his claim. VA records also show the Veteran was notified by correspondence dated November 29, 2011, that his September 2011 VA Form 21-526 had been misplaced and that he provided a VA Form 21-526 in December 2011 that reported “N/A” in the section addressing the disability he was claiming. In correspondence received by VA on January 4, 2013, the Veteran requested a status update on his claim. VA correspondence dated January 10, 2013, notified the Veteran he had been informed of the status of his claim on August 2, 2011, and that new and material evidence was required to reopen a service connection claim. The Veteran’s September 2011 indicates disagreement with an eligibility for nonservice-connected disability pension benefits, but includes no reference to the denial of entitlement to service connection for poor hearing. On February 12, 2013, VA received correspondence from the Veteran including a request to reopen his service connection claim for hearing loss. Additional evidence, including an April 2013 lay statement in support of the claim, was submitted and in May 2013 the RO denied reopening the claim. The Veteran subsequently perfected an appeal from that determination that was resolved when the RO granted entitlement to service connection for bilateral sensorineural hearing loss in September 2016. That rating decision assigned an effective date from February 12, 2013, and the present appeal followed. Based upon the evidence of record, the Board finds the Veteran’s request to reopen a previously denied service connection claim for bilateral hearing loss was received by VA on February 12, 2013, and that an award of service connection has been assigned effective from that date. VA records show the Veteran was adequately notified of the previous decision denying service connection for poor hearing on August 2, 2011, and of his appellate rights. No correspondence received by VA within one year of that date may be reasonably construed as a notice of disagreement from the denial of service connection for poor hearing. See 38 C.F.R. § 20.201 (effective prior to March 24, 2015). Nor is there any correspondence dated prior to February 12, 2013, that may be reasonably construed as a request to reopen a service connection claim for poor hearing or hearing loss. Therefore, the appeal must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel