Citation Nr: 21023448 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-55 984 DATE: April 20, 2021 ORDER An effective date prior to July 22, 2015 for the grant of service-connection for bilateral hearing loss is denied. An effective date prior to July 22, 2015 for the grant of service-connection for tinnitus is denied. FINDINGS OF FACT 1. In a December 1980 rating decision, the RO denied service connection for bilateral hearing loss. The Veteran did not appeal that decision within one year of notice of that rating decision and new and material evidence was not received within the one-year appeal period. 2. In a March 2004 rating decision, the RO denied service connection for bilateral hearing loss, finding that the evidence submitted was not new and material. The Veteran did not appeal that decision within one year of notice of that decision, and new and material evidence was not received within the one-year appeal period. 3. On July 22, 2015, the Veteran’s application to reopen his previously denied service connection claim for bilateral hearing loss was received. The Veteran also submitted a new claim for entitlement to service connection for tinnitus. 4. In a November 2015 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus effective July 22, 2015. 5. There is no evidence of any unadjudicated formal or informal claim of service connection for bilateral hearing loss subsequent to the most recent final March 2004 rating decision and prior to the July 22, 2015 claim. 6. There is no evidence of any unadjudicated formal or informal claim of service connection for tinnitus prior to the July 22, 2015 claim. CONCLUSIONS OF LAW 1. The December 1980 and March 2004 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for an effective date earlier than July 22, 2015, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an effective date earlier than July 22, 2015, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from August 1970 to April 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for bilateral hearing loss and tinnitus, both effective from July 22, 2015. The Veteran timely appealed the effective dates for service connection. In January 2021, the Veteran testified before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Effective Date Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Where a claim is reopened after a prior final disallowance based on the receipt of new and material evidence, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Under the revised regulations, although informal claims are no longer recognized, a claimant may submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within one year of receipt of the intent to file a claim. An intent to file a claim must identify the general benefit (e.g., compensation, pension), but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based. 38 C.F.R. § 3.155(b) (2018). However, earlier effective dates can be established in some cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America’s Veterans Act), Public Law 112-154, Section 506, 126 Stat. 1165 was signed into law on August 6, 2012. Section 506 of the Act amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013 through August 5, 2015. Under the Act, an effective date of up to one year prior to submission of the claim may be assigned when evidence demonstrates that the disability existed for one year prior to submission of the claim. As the Veteran’s July 2015 claim was not submitted under the FDC framework, the rules governing the assignment of effective dates for claims decided under the FDC process do not apply to the present claims. 38 U.S.C. § 5110(b)(2)(A). 1. Entitlement to an effective date prior to July 22, 2015 for the grant of service connection for bilateral hearing loss and tinnitus The Veteran contends that he is entitled to an effective date of March 2004 [the date of the RO denial of the application to reopen the previously denied claim for bilateral hearing loss]. Specifically, the Veteran contends that he never received notification of the denial of that claim. In a December 1980 rating decision, the RO denied entitlement to service connection for bilateral hearing loss on the basis that the Veteran did not have a hearing loss disability for VA purposes. In a December 1980 notification letter, the RO notified the Veteran of the December 1980 rating decision. The Veteran did not appeal the December 1980 decision within one year of the December 1980 notice and new and material evidence was not received within the one-year appeal period. Therefore, the December 1980 decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.1103. In October 2003, the Veteran submitted an application to reopen the previously denied claim of service connection for bilateral hearing loss. In a March 2004 rating decision, the RO denied the Veteran’s application to reopen his previously denied claim for bilateral hearing loss because the evidence submitted was not new and material. In a March 2004 notification letter, the RO notified the Veteran of the March 2004 rating decision. The Veteran did not appeal the March 2004 rating decision within one year of the March 2004 notice, and new and material evidence was not received within the one-year appeal period. Therefore, the March 2004 rating decision is final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.1103. On July 22, 2015, the RO received the Veteran’s application to reopen the previously denied claim for service connection for bilateral hearing loss. The Veteran also submitted a new claim for entitlement to service connection for tinnitus. In a November 2015 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus, effective July 22, 2015, the date the Veteran’s application to reopen the previously denied claim for bilateral hearing loss and the new claim for service connection for tinnitus was received. The Board must consider whether any evidence of record prior to July 15, 2015, could serve as a formal or informal claim in order to entitle the Veteran to an earlier effective date for his disabilities. In this regard, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. As noted above, VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As noted above, the December 1980 rating decision and March 2004 rating decisions are final. Following the last final decision in March 2004, there was no claim, formal or informal, for service connection for hearing loss until the July 22, 2015 claim to reopen the previously denied claim of service connection for hearing loss and the claim of service connection for tinnitus. Furthermore, there is no communication in the record that could be considered a claim for VA compensation for service connection for bilateral hearing loss. Additionally, there is no indication that the Veteran attempted to file a claim for tinnitus prior to his July 22, 2015 claim. Notably, the Veteran wrote “new claim; tinnitus” in the July 22, 2015 VA 21-526EZ form. Accordingly, the proper effective date for the grants of service connection for bilateral hearing loss and tinnitus is July 22, 2015. While the Veteran argues that he never received the March 2004 notice of denial, there is a presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by “clear evidence to the contrary.” Schoolman v. West, 12 Vet. App. 307, 310 (1999). An allegation of non-receipt, by itself, is insufficient to rebut the presumption of regularity. Id. Rather, a claimant bears the burden of producing evidence that VA did not follow its regular mailing practices or that its practices were not regular. Clarke v. Nicholson, 21 Vet. App. 130 (2006). Once the presumption of regularity has been rebutted, the burden shifts to VA to show that regular mailing practices were followed in mailing the document in question in accordance with applicable laws and regulations, or that the claimant actually received the notice. Crain v. Principi, 17 Vet. App. 182, 186 (2003). In this case, the presumption of regularity is not rebutted. There is a record of the notice letter that was mailed to the Veteran following the March 2004 rating decision. The Veteran’s name and address on that letter match the name and address the Veteran provided in his October 2003 VA Form 21-526. Additionally, the address remained the same for the July 22, 2015 VA 21-526EZ form and there is no evidence that any of correspondence was returned as undeliverable. Further, during his January 2021 hearing, the Veteran verified that he did live at that address during the time period in question. Lastly, there is no communication between VA and the Veteran between the March 2004 notification of denial and the July 22, 2015 claim regarding the Veteran’s claim for bilateral hearing loss. There is no other evidence to indicate that the notice of the March 2004 decision was not mailed, and the Veteran has not raised any other assertion, other than his non-receipt, with regard to VA’s mailing practices. Hence, the presumption of regularity has not been rebutted. Although mindful of the Veteran’s sincere belief that an earlier effective date is warranted for the grants of service connection for bilateral hearing loss and tinnitus, the Board is bound by the laws and regulations that apply to veterans’ claims. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.105. Those laws and regulations reflect that an effective date earlier than July 22, 2015 is not warranted for the grant of service connection for bilateral hearing loss and tinnitus. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.