Citation Nr: 19118917 Decision Date: 03/15/19 Archive Date: 03/14/19 DOCKET NO. 17-44 352 DATE: March 15, 2019 ORDER An effective date of May 17, 1989 for the grant of service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. On May 17, 1989, VA received the Veteran’s claim for service connection for hearing loss. 2. The request for service connection for hearing loss was subsequently denied in a July 1989 rating decision. 3. A relevant service personnel record that had not been associated with the claims file at the time of the original service connection denial verifies the in-service event of treatment for rubella during service. CONCLUSION OF LAW The criteria for an effective date of May 17, 1989 for the grant of service connection for bilateral hearing loss are met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.156, 3.326(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from February 1967 to April 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision, which implemented the Board’s May 2015 decision granting service connection for bilateral hearing loss. The June 2015 rating decision, in implementing the Board’s May 2015 decision, assigned a 30 percent rating, effective March 22, 2010. In a July 2015 notice of disagreement, the Veteran disagreed with the effective date assigned. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2018). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As such, no further discussion of VA’s duties to notify and assist is necessary. Earlier Effective Date for Service Connection for Bilateral Hearing Loss Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Title 38 of the Code of Federal Regulations (2018) clarifies that an award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the appellant’s claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Under 38 C.F.R. § 3.156(c), except as otherwise provided, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records, that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding paragraph (a) of the same section. This regulation does not apply to records that VA could not have obtained when it decided the claim because they did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records. Id. at (c)(2). An award made based all or in part on records identified in § 3.156(c)(1) is effective on the date entitlement arose or the date which VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim. 38 C.F.R. § 3.156(c)(3). Such regulation essentially establishes that, where an initial claim is denied due to the lack of evidence of an in-service event, but is later granted based all or in part on subsequently acquired service records establishing the in-service event, the claimant is entitled to a retroactive evaluation of the disability to assess the proper effective date, which would be the date of the original claim or the date entitlement otherwise arose, whichever is later. Id.; Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008). In this sense, the prior denial is reconsidered, and the original claim serves as the date of the claim and the earliest date for which benefits may be granted. On May 17, 1989, VA received the Veteran’s claim for service connection for hearing loss. The request for service connection for hearing loss was subsequently denied in a July 1989 rating decision. The Veteran filed new claims for service connection for hearing loss in September 1997 and in March 2010. A May 2015 Board decision granted service connection for bilateral hearing loss. Per the May 2015 Board decision, a service personnel record reflecting treatment for rubella that had not been associated with the claims file at the time of the original service connection denial showed a relevant in-service event. This in-service event was the basis for a positive nexus opinion. See January 2013 private opinion (reflecting that a private examiner opined that preexisting hearing loss was aggravated by rubella during service). Having reviewed all the evidence of record, the Board finds that the outstanding service personnel record reflecting treatment for rubella is relevant evidence that, upon reconsideration of the July 1989 rating decision, leads to the grant of service connection for hearing loss. For the above stated reasons, the Board finds that an earlier effective date of May 17, 1989, the date of original claim, for the grant of service connection for hearing loss is warranted. 38 C.F.R. §§ 3.156(c), 3.400. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel