Citation Nr: 21072471 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-09 475 DATE: December 3, 2021 ORDER Entitlement to an earlier effective date prior to September 29, 2016, for the grant of service connection for tinnitus is denied. Entitlement to an earlier effective date prior to September 29, 2016, for the grant of service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. In a July 2005 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal this decision, nor was new and material evidence received within one year of this decision. 2. The next application to reopen the previously denied claim for service connection for bilateral hearing loss and tinnitus was received by VA on September 29, 2016. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 29, 2016, for the grant of service connection for bilateral hearing loss and tinnitus have not been met. See 38 U.S.C. §§ 1155, 5110 (West 2014); 38 C.F.R. §§ 3.156, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1954 to November 1956. As an initial matter, the Board notes that the Veteran submitted a March 2019 statement suggesting that a clear and unmistakable (CUE) error occurred in a July 2005 rating decision in the assignment of the effective date for the grant of service connection for tinnitus. The Board notes that a Veteran is free to file a motion to revise a final decision based upon CUE. 38 C.F.R. § 3.105 (a). The Board will not, however, expand the claim currently on appeal to include a claim of CUE in the prior denial. While an appeal of an effective date and a motion for revision of a prior final rating decision based on CUE are both methods by which the Veteran may obtain an earlier effective date, they are separate processes, each with distinct requirements. An assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of an appeal for an earlier effective date. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). Therefore, jurisdiction over an earlier effective date appeal does not extend to an allegation of CUE in a prior final rating decision. See Phillips v. Brown, 10 Vet. App. 25, 33 (1997). Rather, such a CUE motion must be adjudicated by the AOJ in the first instance and separately appealed to the Board. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (concluding that, because the Board lacked jurisdiction over a theory of CUE that had not been adjudicated by the AOJ, the appropriate course of action for the Board was to refer the CUE matter to the AOJ for adjudication in the first instance). Therefore, as the AOJ never adjudicated a claim for CUE in the July 2005 rating decision, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2020). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. In a November 2021 Report of General Information, the Veteran withdrew his request for a hearing. As such, the Board will proceed to adjudicate these claims, as done below. The Veteran claims that an earlier effective date prior to September 29, 2016, should be assigned for the grant of service connection for bilateral hearing loss and for tinnitus. Specifically, the Veteran asserted in his June 2017 notice of disagreement (NOD) that he should have been granted service connection back to March 30, 2005. The effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (West 2002); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1) (West 2002); 38 C.F.R. § 3.400 (b)(2)(i). The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (West 2002); 38 C.F.R. § 3.400 (q)(ii), (r). In considering the pertinent evidence of record under the laws and regulations, the Board finds that September 29, 2016, is the correct date for the grant of service connection for bilateral hearing loss and tinnitus. While the Veteran has argued that he is entitled to an effective prior to September 29, 2016, for his award of service connection, there is no basis under the governing criteria to establish that he is legally entitled to an earlier effective date. In a July 2005 rating decision, the AOJ denied service connection for bilateral hearing loss and tinnitus. After the July 2005 denial, the Veteran did not file a NOD with regard to this denial and gave no indication that he wished to appeal the denial of these claims. Moreover, he did not submit any additional related evidence within a year of the July 2005 rating decision. As such, the July 2005 denial became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 3.156(b), 20.302, 20.1103. Subsequently, the Veteran submitted an Application for Disability Compensation and Related Compensation Benefits on September 29, 2016, related to bilateral hearing loss and bilateral tinnitus. In a March 2017 rating decision, the AOJ granted service connection for bilateral hearing loss and tinnitus and assigned effective dates of September 29, 2016. As noted above, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a) (West 2014); 38 C.F.R. § 3.400. As noted above, the July 2005 denial became final. The Veteran did not appeal this rating decision, and he did not submit another claim for service connection until September 29, 2016. As such, entitlement to service connection for bilateral hearing loss and tinnitus is not warranted prior to September 29, 2016. In denying this claim, the Board has considered the assertion in the November 2021 Informal Hearing Presentation that an earlier effective date is warranted for these disabilities, as the 2005 rating decision was based on partial service treatment records. The representative noted that the AOJ indicated in the July 2005 rating decision that efforts to obtain all of the Veteran's service medical records were unsuccessful, and that this decision would be reconsidered, if other records were located at a later date. The AOJ specifically noted in this determination that, if a different decision results, that decision will be effective as of the date of the 2005 claim. In this regard, the Board notes that applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. See 38 C.F.R. § 3.156 (c)(1) (2020). However, in this case, additional service treatment records were never located or associated with the claims file. The Veteran's claims were eventually granted in the March 2017 rating decision as a result of a February 2017 VA medical opinion that was obtained in connection with Veteran's September 2016 claim. The Board notes that a single military personnel record was associated with the file in September 2016. However, this personnel record was not pertinent to the claims on appeal and had no bearing on their adjudication. Therefore, while the July 2005 rating decision advised the Veteran that reconsideration of the claims could potentially be warranted under certain circumstances, reconsideration of the claims in accordance with 38 C.F.R. § 3.156 (c)(1) was not ultimately warranted, as no additional, relevant service records were associated with the claims file after the July 2005 denial. Additionally, the Board notes that the Veteran argued in his March 2019 VA Form 9 that his case was decided incorrectly because he was not previously notified that he had only 1 year to file a NOD with the July 2005 denial. However, in the July 27, 2005, letter from VA notifying him of the denial of his claims, VA clearly stated that he had "one year from the date of this letter to appeal the decision" and enclosed a VA Form 4107, which explained his right to appeal. As the Veteran has never indicated that he was not notified of the July 2005 denial of these claims, and the denial letter clearly stated that he had one year to appeal the decision, the Board finds that the evidence of record does not support the assertion that he was not notified of his rights to appeal the decision. The Board is deeply sympathetic to the Veteran's assertions that he has suffered from symptoms related to tinnitus and hearing loss since his time in service. However, the Board is constrained by the law and regulations made by the Congress governing the establishment of effective dates for the award of compensation. In this case, the Veteran did not submit the claim on appeal within 1 year of separation from service; he did not appeal the July 2005 denial of his claims for service connection for bilateral hearing loss and tinnitus; no new and material evidence was received within one year of the July 2005 denial; and there is no record of an application to reopen his previously denied claims being submitted to VA prior to September 29, 2016. As such, the Board concludes that earlier effective dates are not warranted in this case under VA regulations governing effective dates for awards based on a claim to reopen after a final disallowance. 38 U.S.C. § 5110 (a) (West 2002); 38 C.F.R. § 3.400. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.