Citation Nr: 20023902 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 15-23 267A DATE: April 7, 2020 ORDER Entitlement to an effective date prior to December 14, 2011 for a 10 percent rating for right ear hearing loss is denied. Entitlement to an effective date prior to December 17, 2004 for the grant of service connection and a 10 percent rating for left foot post-traumatic exostosis is denied. FINDINGS OF FACT 1. The Veteran filed a formal claim for an increased rating for right ear hearing loss on December 14, 2011. 2. Prior to December 14, 2011, there was no formal or informal claim pending for an increased rating for right ear hearing loss, and it was not factually ascertainable that an increased 10 percent rating for the Veteran’s right ear hearing loss was warranted. 3. A rating decision denied service connection for a left foot disability in May 2002, and that decision is final. 4. Prior to the December 17, 2004 informal claim, there was no formal or informal claim pending for service connection for left foot post-traumatic exostosis. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to December 14, 2011 for grant of a 10 percent rating for right ear hearing loss have not been met. 38 U.S.C.§§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019). 2. The criteria for an effective date prior to December 17, 2004 for the grant of entitlement to service connection for left foot post-traumatic exostosis have not been met. 38 U.S.C.§§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from June 1985 to June 1996. An October 2001 administrative decision found that the Veteran was eligible for benefits for his first period of service from June 5, 1985 to December 24, 1991, based on his character of discharge. The Veteran testified before the undersigned Veterans’ Law Judge at a video conference hearing in August 2018. A transcript of the hearing has been associated with the claims file. In November 2019 correspondence the Veteran requested that his claim be advanced on the docket due to caring for his elderly mother, the long period of time his claim has been under appeal, and ongoing financial hardship due to his inability work. The Veteran has not provided evidence of severe financial hardship, and this has not been described in any specificity or documented. (Examples would include homelessness, threat of foreclosure, cut-off utilities, inability to provide for living necessities, etc.) Accordingly, the motion for advancement of the case on the Board’s docket must be denied at this time. At the August 2018 hearing, the Veteran alleged the May 2002 rating decision regarding his left foot disability was inaccurate and based on an inaccurate VA examination in January 2002. This was based on a May 2002 rating decision that is final. As noted at the hearing if the Veteran wishes to file a claim as to the accuracy of a rating decision such would be a claim for revision based on clear and unmistakable error (CUE) in a particular rating decision. Such a claim is not currently before the Board, and if the Veteran wishes to pursue such, he should file a claim with the regional office (RO). Effective Date Generally, the effective date of an award shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. The effective date of an award of compensation for service connection will be the “[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (b)(2); see also 38 U.S.C. § 5110 (a); Sears v. Principi, 16 Vet. App. 244 (2002). Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). As to an earlier effective date for increased rating claims, except as otherwise provided, the effective date of an award of an increased rating shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). The earliest date of entitlement to an increase in disability compensation is the date at which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (o)(2). When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective dates for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. Id. Prior to March 24, 2015, VA recognized formal and informal claims. A claim is defined as 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). An informal claim is any communication or action indicating intent to apply for one or more benefits and must identify the benefit sought. 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims both formal and informal for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Here the Board will consider both formal and informal claims. Right ear hearing loss The Veteran contends that he is entitled to an earlier effective date for the grant of an increased 10 percent rating effective December 14, 2011 for right ear hearing loss. The Veteran contends that an earlier effective date is warranted specifically from June 28, 2000 forward, the date of his original claim. The Veteran contends in November 25, 2002 correspondence from VA he was granted a combined 20 percent rating of which he believes was a 10 percent for his right ear hearing loss. The Veteran was discharged from service in June 1996. He submitted a formal claim for service connection for right ear hearing loss via VA Form 21-526, Veteran’s Application for Compensation or Pension which was received by VA on June 28, 2000. A July 2002 rating decision denied entitlement to compensation for hearing loss, noting that the Veteran failed to appear at a scheduled June 2002 VA examination. Then a November 2002 rating decision granted service connection for right ear hearing loss with a noncompensable evaluation effective June 28, 2000. Notice was sent to the Veteran on November 25, 2002 noting a noncompensable rating was assigned effective June 28, 2000, the date of his initial claim. The total compensation was based on the new 10 percent for tinnitus and an already granted 10 percent rating for arthritis of the right knee and ankle, both effective June 28, 2000. The Veteran did not express disagreement or submit new and material evidence within one year, and the decision is final. Then, the Veteran submitted a formal claim via VA Form 21-526b, Veteran’s Supplemental Claim for Compensation for his already service-connected right ear hearing loss which was received by VA on December 14, 2011. A December 2013 rating decision granted an increased 10 percent rating for right ear hearing loss effective December 14, 2011. In April 2014 the Veteran submitted a notice of disagreement (NOD) seeking an earlier effective date for the grant of 10 percent rating for right ear hearing loss. The Veteran contends that an earlier effective date of June 28, 2000 is warranted as such was the date of his original claim. A statement of the case (SOC) was issued in May 2015. The Veteran submitted a VA Form 9 Appeal to Board of Veterans Appeal in July 2015. This appeal followed. In this appeal, the Veteran reported that his then representative failed to follow up on his original intent to file a timely disagreement. Failure of action by the representative does not toll the requirement to file a timely appeal. The Veteran disagrees with the assigned effective date of the 10 percent disability rating, essentially arguing that this rating should go back to the date he filed his initial claim for right ear hearing loss in June 2000. The Board notes the Veteran consistently contends and testified in August 2018 that the November 2002 notification letter indicated that he was awarded a 20 percent rating, for his right ear hearing loss and tinnitus, and that a 10 percent rating was intended to be granted from June 28, 2000 forward, the date of his initial claim. The Board has considered the Veteran’s contentions and thoroughly examined the documents the Veteran has used in supporting his argument. However, the Board notes that on the November 2002 notification letter the RO was noting that the Veteran was granted a 10 percent rating for tinnitus and a noncompensable rating for right ear hearing loss. The Veteran’s overall rating noted in this correspondence was 20 percent because he had previously been service-connected for right knee and right ankle traumatic arthritis rated as 10 percent disabling from June 28, 2000 forward, making his combined evaluation 20 percent. There was no typographical error. If there is a prior RO or Board denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002); Flash v. Brown, 8 Vet. App. 332 (1995). A claimant cannot file a new claim seeking an earlier effective date for an award where the decision that assigned the effective date has already become final. Such would be a “freestanding” effective date claim and these types of claims are not allowed. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). The only way to overcome the finality of a decision is to request revision of the decision based on clear and unmistakable error (CUE). Id. As noted above, if the Veteran is seeking to allege CUE in a prior rating decision this is a separate claim which he could file with the RO. The Veteran submitted a claim for an increased rating or a claim to reopen on December 14, 2011. The Board has reviewed the evidence of record to determine what is the earliest date that entitlement to an increase in disability compensation was factually ascertainable based on all the evidence. A VA examination in December 2013 noted a worsening of the Veteran’s hearing loss based on audiological testing. Thus, the earliest date that entitlement arose for an increased rating for right ear hearing loss is December 14, 2011, the date of the Veteran’s claim. Thus, the date that it was factually ascertainable that an increase in disability had occurred, is later than the date of receipt of the Veteran’s claim, and an earlier effective date is not warranted. The Veteran’s 10 percent rating for right ear hearing loss has been established as effective the date his claim received by VA on December 14, 2011. There is no earlier evidence of a factually ascertainable worsening disability. Therefore, entitlement to effective date prior to December 14, 2011, for the grant of a 10 percent rating for right ear hearing loss, must be denied. 38 C.F.R. § 3.400. Left foot The Veteran contends that he is entitled to an earlier effective date prior to December 17, 2004 for the grant of service connection for left foot status-post traumatic exostosis. Specifically, the Veteran contends that an earlier effective date of June 28, 2000 is warranted. The Veteran contends he has had ongoing left foot pain since bootcamp which causes ongoing current pain. The Veteran was discharged from service in June 1996. He submitted a formal claim for service connection for broken arch support, fallen arches and left foot pain via VA Form 21-526, Veteran’s Application for Compensation or Pension which was received by VA on June 28, 2000. A May 2002 rating decision denied service connection for bilateral foot pain, claimed as fallen/broken arches and bilateral plantar fasciitis. The Veteran did not express disagreement or submit new and material evidence within one year, and that decision is final. Then, the Veteran submitted an informal claim for service connection for a left foot condition via VA Form 21-4138, Statement in Support of Claim which was received by VA on December 17, 2004. A July 2005 rating decision granted service connection for left foot post traumatic exostosis effective December 17, 2004. The Veteran submitted a notice of disagreement (NOD) as to the rating for his left foot in March 2006, contending a worsening of his disability. A statement of the case (SOC) was issued in April 2007. The Veteran submitted a substantive appeal (VA Form 9 Appeal to Board of Veterans Appeals) in June 2007. Then a November 2011 rating decision granted an increased 10 percent rating for left foot post traumatic exostosis effective October 7, 2011. A December 1, 2011 notice to the Veteran notified him of the increased 10 percent rating effective October 7, 2011. The Veteran submitted a NOD in December 2011, noting disagreement with the assigned rating for his left foot disability. As a result of an April 2013 Board decision, a May 2013 rating decision granted a 10 percent rating for left foot post traumatic exostosis effective December 17, 2004. The Veteran submitted a NOD in June 2013 seeking an earlier effective date of June 28, 2000, the date of his original claim. A SOC was issued in May 2015. The Veteran submitted a substantive appeal (VA Form 9 Appeal to Board of Veterans Appeals) in July 2015. This appeal followed. In this appeal, the Veteran reported that his then representative failed to follow up on his original intent to file a timely disagreement. Failure of action by the representative does not toll the requirement to file a timely appeal. The effective date for the grant of the Veteran’s service connection for left foot post traumatic exostosis was the date of receipt of his claim December 17, 2004. Previously the Veteran submitted a claim for service connection in June 2000 which was denied in a May 2002 rating decision. The Veteran received notification of this rating decision, in June 2002 and this rating decision became final. Here there was a prior final decision denying the benefit sought. The Veteran contends that he is entitled to an effective date based on his initial claim. The attempt to revisit that prior claim and decision is prohibited as that would violate the concept of finality. The proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, 38 U.S.C. § 5110 (a). Rudd v. Nicholson, 20 Vet. App. 296 (2006). As the prior May 2002 rating decision is final, an effective date based on that claim is not warranted. Further, prior to December 17, 2004 there was no formal or informal claim pending for a left foot disability. Therefore, an earlier effective date is not warranted. The Board finds that there is no interpretation of the facts of this case which will support a legal basis for favorable action with regard to the Veteran’s claim. There was no communication or submission of evidence from the Veteran evidencing intent to apply for benefits from the time of separation from service in October 2013 until receipt of the Veteran’s formal claim in December 2004. Accordingly, the Board finds no basis in the law or facts in this case for an earlier effective date for the Veteran’s service-connected left foot post traumatic exostosis, prior to December 17, 2004. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For these reasons, the claim is denied. The benefit of the doubt doctrine was considered; however, as the preponderance of the evidence is against this claim this doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kardian, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.