Citation Nr: 25003545 Decision Date: 03/13/25 Archive Date: 03/13/25 DOCKET NO. 14-06 6884A DATE: March 13, 2025 ORDER An effective date earlier than August 16, 2011, for the grant of service connection for hearing loss, is denied. An effective date earlier than August 16, 2011, for the grant of service connection for tinnitus, is denied. Reversal or revision on the basis of clear and unmistakable error (CUE), of a September 1946 rating decision that denied service connection for bilateral ear conditions, is dismissed without prejudice. ? FINDINGS OF FACT 1. Service connection for hearing loss was denied in an April 2010 rating decision that became final; a claim to reopen with new and material evidence was received on August 16, 2011. 2. Service connection for tinnitus was denied in an April 2010 rating decision that became final; a claim to reopen with new and material evidence was received on August 16, 2011. 3. Neither the Veteran nor the substituted appellant pled CUE with the requisite specificity to adjudicate a CUE issue. 4. The substituted appellant, the adult daughter of the deceased Veteran, has already received reimbursement of payment of the last sickness and burial, the maximum accrued benefits available by law for this case. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 16, 2011, for the grant of service connection for hearing loss, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 2. The criteria for an effective date earlier than August 16, 2011, for the grant of service connection for tinnitus, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 3. The criteria for dismissal of the motion to revise or reverse on the basis of CUE, a September 1946 decision that denied bilateral ear conditions, have been met. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1943 to January 1946. The case is on appeal from an August 2012 rating decision. The Veteran died in June 2014. The appellant is the Veteran's adult daughter, who was granted substitution to complete the Veteran's appeal. See December 2023 Board Decision. A Board hearing was held with the appellant in October 2024. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Effective Date 1. An effective date earlier than August 16, 2011, for the grant of service connection for hearing loss. 2. An effective date earlier than August 16, 2011, for the grant of service connection for tinnitus. Legal Criteria Generally, the effective date of an award is the date after separation from service or date entitlement arose, whichever is later, for claims filed within one year of separation; or the date the claim was received by VA or the date entitlement arose, whichever is later, for claims filed more than one year after separation from service. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of compensation based on a reopened claim will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Although VA amended the claims filing process to require the filing of proper standard forms effective March 24, 2015, here, the "informal claim" provisions are the proper application given the time period in which the Veteran's claims were filed. The essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155. Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims formal and informal for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Analysis The Veteran separated from service in January 1946. In a September 1946 rating sheet, he was granted VA assistance "For Outpatient Treatment Purposes Only" for otomycosis (fungal ear infection) bilaterally. Thereafter, the Veteran was denied claims to reopen for service connection for the ears in November 1954 and March 1977. He appealed another denial by the RO in April 2002. In October 2004, the Board found new and material evidence had been received, but ultimately denied service connection for hearing loss and tinnitus on the merits. The Veteran continued to seek service connection for hearing loss and tinnitus with additional claims to reopen. Crucially with regard to effective dates, he was again denied in April 2010 for failure to submit new and material evidence in order to reopen his claims, with a decision letter mailed to the then current mailing address of record. The Veteran did not appeal this decision and it became final. Nothing further regarding the claims was received until August 16, 2011, when the Veteran submitted VA Form 21-526EZ, seeking to reopen the claims for hearing loss and tinnitus. He was granted service connection for hearing loss and tinnitus in an August 2012 rating decision, and provided an effective date of August 16, 2011, the date of his claim, for both conditions. The Board thoroughly reviewed the evidence of record, and it does not contain any evidence of the Veteran having filed with the VA an intent to file, or a service connection claim for hearing loss or tinnitus, from the April 2010 denial that became final, until the August 16, 2011 claim. The Veteran also did not assert, nor does the record otherwise reflect, that any irregularity in mailing occurred that would allow for consideration of an earlier effective date. Thus, the Board presumes "that what appears regular is regular." Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (presumption of regularity to procedures at the RO). Thus, as the Veteran did not appeal the April 2010 denials of service connection, that decision became final, and the effective date for hearing loss and tinnitus can be no earlier than the date of receipt of the claim, which is August 16, 2011. This is the later date between the date entitlement arose and date of the reopened claim. 38 C.F.R. § 3.400(r). As such, the evidence is persuasively against earlier effective dates, and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, effective dates prior to August 16, 2011, for the grant of service connection for hearing loss and for tinnitus is not warranted. 3. Reversal or revision on the basis of CUE of a September 1946 rating decision that denied service connection for bilateral ear conditions. Legal Criteria A CUE motion is a collateral attack on a final Regional Office (RO) decision. See\ 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). CUE is established when the following conditions are met. First, either (1) the correct facts in the record were not before the adjudicator, or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied. Second, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Finally, the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014). See also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The governing regulations also enumerate specific filing requirements for CUE motions. Specifically, a CUE motion must be in writing, signed by the requesting party or their authorized representative, and include the name of the claimant, the applicable VA file number, and the date of the decision to which the request relates.? 38 C.F.R. § 3.105(a)(vii)(A). The request must also set forth clearly and specifically the alleged clear and unmistakable error(s) of fact or law in the prior decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error; non-specific allegations of failure to follow regulations or failure to give due process, or other general, non-specific allegations, are insufficient to satisfying the filing requirements. 38 C.F.R. § 3.105(a)(vii)(B). Assertions of CUE that fail to satisfy the pleading requirements should be dismissed without prejudice to refiling. Simmons v. Principi,?17 Vet. App. 104, 113-14?(2003). ? Analysis In August 2012, the Veteran filed a notice of disagreement (NOD) to the effective dates awarded in the August 2012 rating decision. He asserted that "THIS CLAIM WAS ADJUDICATED IN 1946 AND REMANDED BY BVA for payment and DVA made the CUE and did NOT pay the veteran." In the Veteran's substantive appeal, he stated that he was having hearing problems in 1946 and 1954, but was never given VA hearing exams at those times, and "request compensation from 1954 as the effective date of my claim for hearing loss and tinnitus." See March 2014 VA Form 9. The Board finds that this correspondence, to the extent it represents a CUE motion, fails to set forth clearly and specifically the alleged clear and unmistakable error(s) of fact or law, in which specific VA decision the alleged errors occurred, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. While 1946 and 1954 are dates that had rating decisions, simply alleging CUE generally is insufficient, and cannot be adjudicated without further specificity. To date, neither the Veteran or his representative prior to his death, nor the appellant after substitution, has filed a CUE motion that complies with the requirements as described in 38 C.F.R. § 3.105, even when the submissions are liberally and sympathetically read. Therefore, the CUE motion was not pled with sufficient particularity and must be dismissed without prejudice to refiling, if the substituted appellant wishes to continue pursuit of this claim. 38 C.F.R. § 3.105; Simmons, 17 Vet. App. at 105. With that said, unfortunately there appears to be substantial confusion by the appellant regarding the amount of accrued benefits potentially at issue in this claim. At the October 2024 hearing, she asserted that she was substituted by her father as the claimant in October 2013 prior to the Veteran's death in 2014. She also cited to 38 U.S.C. § 5121(a), as authority for entitlement to payment of any awarded accrued benefits. In December 2023, the Board officially granted the appellant substitution for reimbursement of payment of last sickness and burial, after a different adult child of the Veteran also applied for accrued benefits, creating a contested claim for those benefits. However, the RO had already previously awarded the appellant $2,000 for burial expenses, and $650 for transportation expenses. See September 2014 Notification Letter. The appellant has also acknowledged this reimbursement. See November 2022 Report of General Information. Payments of accrued benefits are payable under certain circumstances in accordance with 38 C.F.R. § 3.1000 or as a substitute party in accordance with 38 C.F.R. § 3.1010. Benefits are payable to the living person first listed as follows: (i) his or her spouse; (ii) his or her children (in equal shares); (iii) his or her dependent parents (in equal shares) or the surviving parent. 38 C.F.R. § 3.1000(a)(1). In all other cases, "only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial." 38 C.F.R. § 3.1000(a)(5). See also 38 U.S.C. §5121(a). Although the record does not dispute the contention of the appellant that she is the Veteran's child, the term "child" for accrued or substitute benefits has a specific definition as set forth in VA's statutes and regulations, and is not the commonly understood definition. Rather for VA purposes, "child" is expressly defined as a person who is unmarried and is either: (1) under the age of 18; (2) became permanently incapable of self-support before the age of 18; or, (3) under the age of 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57; see also Sucic v. Shinseki, 921 F.3d 1095, 1099 (Fed. Cir. 2019) (affirming the application of this definition of "child" to 38 U.S.C. § 5121). For individuals like the appellant over the age of 23, the only potential method by which she may be considered a "child" and therefore entitled to additional accrued benefits at this point was if she became permanently incapable of self-support prior to attaining age 18. Here, the record indicates that the appellant has been married and there is absolutely no evidence of record or allegations in the claims file of being permanently incapable of self-support prior to adulthood. When an adult child does not meet the strict requirements to be considered a "child" for VA's purposes, the only potential way that such an individual may be entitled to accrued benefits or to substitute into a pending claim or appeal is if that individual bore the expense of last sickness or burial of the Veteran. 38 C.F.R. § 3.1000(a)(5). As the appellant does not meet the strict requirements to be considered a "child" for VA's purposes, and has already been reimbursed for the payment of the Veteran's burial and transportation expenses, VA statutes and regulations restrict her right to any further accrued benefits, regardless of the outcome of a claim for an earlier effective date for service connection for hearing loss and tinnitus, based on CUE or otherwise. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.