Citation Nr: 1749087	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  15-37 004	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to an effective date earlier than July 10, 2013, for the grant of service connection for hearing loss. 


REPRESENTATION

Veteran represented by:	New Jersey Department of Military and Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Hodzic, Associate Counsel


INTRODUCTION

The Veteran had active duty service from June 1944 to June 1946.

In May 2016, the Veteran presented hearing testimony before the undersigned Veteran's Law Judge (VLJ).  A transcript of that hearing is associated with the record.  In July 2016, the Board denied the appeal.  He appealed the Board's decision to the Veterans Claims Court.  In November 2016, the Court Clerk granted a Joint Motion for Remand (JMR), vacating the Board's decision.  In May 2017, the Board remanded the case for additional evidentiary and procedural development.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran initially filed a claim for entitlement to service connection for a left ear condition in January 1947, but did not respond to a request for additional information.

2.  A claim for hearing loss was denied in August 1988 but the Veteran did not appeal or submit new and material evidence within one year; thus, the August 1988 rating decision became final.

3.  The next claim for service connection for hearing loss was received on July 10, 2013; there is no evidence of any intervening claim.

4.  Although certain official service department records were associated with the claims file for the first time in October 2014, these records are not relevant; thus, reconsideration of the Veteran's claim is not warranted.


CONCLUSION OF LAW

The criteria for an effective date prior to July 10, 2013, for grant of service connection for hearing loss have not been met.  38 U.S.C.A. §§ 5103(a), 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.156, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran is seeking an earlier effective date for the grant of service connection for hearing loss.  In his April 2015 notice of disagreement (NOD) and in personal testimony before the Board, he asserted that the grant of service connection should have been effective in January 1947, the date he initially filed a claim. 

The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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.A. § 5110(a). 

This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  See 38 C.F.R. § 3.400. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), 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).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  The term "claim" or "application" means 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).

For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim.  The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims.  See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01.  However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. 

Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  Even with respect to informal claims, such informal claim must identify the benefit sought.  38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). 

The Veteran initially filed a claim for service connection for a "left ear condition" in January 1947.  VA sent a letter in March 1947 informing him that his claim was received and asking him to provide a statement from his doctor "setting forth the nature and extent of the condition[] for which [the doctor] treated [him], together with the history thereof, physical findings, laboratory tests if any, [his] symptoms and [the doctor's] diagnosis."  The letter also stated that once this information was received, VA would further consider the claim.

The Veteran did not respond to this letter until January 1949, when he indicated that his left ear condition had gotten worse and that it hindered his ability to work.  VA sent another letter in January 1949 acknowledging receipt of his statement and again asking him to provide a statement from his doctor regarding the nature, extent, physical findings, laboratory tests, symptoms, and diagnoses of the left ear disorder.  However, he again did not respond and did not submit any evidence until 1988.

He filed another claim for service connection for "loss of hearing in the left ear" in July 1988.  In this application for compensation or pension (VA Form 21-526), the Veteran indicated that his hearing loss occurred because his ship was under attack from a suicide plane, which exploded after hitting the ship.  He also submitted numerous VA treatment records showing current symptoms and his assertions that the left ear disorder was caused by in-service injuries.  A March 1988 VA medical certificate shows that he complained of decreased hearing for two years.  He also stated that he had left ear trouble since a shell exploded ten to twelve feet away from him during World War II.  Likewise, an April 1988 VA consultation sheet showed his complaints of decreased left ear hearing for 40 years due to an explosion in World War II during which he lost consciousness.   

In two August 1988 rating decisions, the VA Regional Office (RO) denied entitlement to service connection for hearing loss because the Veteran did not have hearing loss at discharge from service and the record did not include any evidence showing that the present hearing loss was incurred in or aggravated by his service.  He was notified of these decisions by letters dated August 25, 1988, and August 31, 1988.  He did not appeal the RO's decision and he did not submit new and material evidence within one year of this decision.  Thus, the August 1988 rating decision became final.  

The Veteran has not alleged clear and unmistakable error (CUE) in this August 1988 rating decision.  Rather, he contends that an earlier effective date for the grant of service connection for hearing loss should be assigned because VA should reconsider his original claim for entitlement to service connection.  Specifically, he asserts that he submitted relevant official service department records in October 2014, which were in existence at the time of the August 1988 rating decision, but were not associated with his claims file.  

Generally, 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, notwithstanding the requirement that new and material evidence must first be received.  38 C.F.R. § 3.156(c)(1).  Such "relevant official service department records" include, but are not limited to service records that are related to a claimed in-service event, injury, or disease, additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records, and declassified records that could not have been obtained because the records were classified when VA decided the claim.  

An award made based all or in part on such relevant official service department records is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later, or such other date as may be authorized by the provisions of this regulation applicable to the previously denied claim.  38 C.F.R. § 3.156(c)(3).  

In October 2014, the Veteran submitted several service personnel records from 1945 showing his commendable service and participation during several combat operations against the Japanese forces during World War II.  These official service department records listed his participation in invasion and occupation efforts of numerous Pacific Ocean islands and noted that he was subjected to repeated suicide air attacks and weapons fire while in service.  In the November 2016 JMR and the December 2016 statement, he contended that these service department records show that he engaged in combat with the enemy; thus, provisions pertaining to combat veterans under 38 U.S.C.A. § 1154 apply to his service.  He asserts that his award of service connection for hearing loss, effective July 10, 2013,  was made all or in part on these records.

The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) addressed a similar factual scenario in Kisor v. Shulkin, 2017 U.S. App. LEXIS 17259, at *1 (Fed. Cir. Sept. 7, 2017).  In that case, a veteran's claim of entitlement to service connection for posttraumatic stress disorder (PTSD) was denied in May 1983 because he did not have a diagnosis of PTSD.  He was eventually granted service connection for this disability, effective June 2006.  In his claim for an earlier effective date, that veteran submitted a daily log from his military unit, which detailed the combat events that he had described in connection with his claim.  In effect, these records pertained to that veteran's in-service occurrence and combat-related stressors.  

The Board considered the applicability of 38 C.F.R. § 3.156(c) and determined, in part, that these records were "not relevant to the May 1983 denial of service connection for PTSD because the basis of the denial was that a diagnosis of PTSD was not warranted, not a dispute as to whether or not the [v]eteran engaged in combat with the enemy during service."  Id. at *9.  The Board denied that veteran's claim for an earlier effective date and the Court affirmed the Board's decision.  The Federal Circuit held that because that veteran's official service department records did not remedy the defects of his 1982 claim, namely, that he did not have a diagnosis of PTSD at the time of the previous denial of his claim, and contained facts that were never in question, there was no plain error in the Board's conclusion that the official service department records were not relevant for the purposes of 38 C.F.R. § 3.156(c)(1).  Id. at *18.

Similar to Kisor, the Board has considered the Veteran's contentions but finds that the official service department records, which were associated with the claims file for the first time in October 2014, are not relevant to this claim under 38 C.F.R. § 3.156(c)(1).  Specifically, while the October 2014 official service department records discuss his combat with the enemy in service, these records are not relevant to the August 1988 rating decision that denied his claim for hearing loss.  

That decision denied the Veteran's claim because he did not have hearing loss at discharge from service and the record did not include any evidence showing that the present hearing loss was incurred in or aggravated by service.  In essence, the reasons for the August 1988 denial was because his hearing loss did not manifest in service and there was no causal nexus between his current hearing loss and his active duty service.  While the October 2014 official service department records pertain to his in-service occurrence of being exposed to various acoustic trauma, including from air suicide attacks and participation in combat, they do not show that hearing loss manifested in service or establish a causal link between his hearing loss in 1988 and his active duty service.  

Additionally, the official service department records that were associated with the claims file in October 2014 are not relevant because VA was aware prior to the promulgation of the August 1988 rating decision that the Veteran had engaged in combat during his active duty service.  Specifically, the DD-214 notes that he received numerous commendations and medals showing his participation in various combat operations.  Moreover, March 1988 and April 1988 VA treatment records also show that he experienced acoustic trauma in service from a nearby shell explosion and an explosion in which he lost consciousness.  Likewise, in his July 1988 VA Form 21-526, he stated that his hearing loss was caused by an air suicide attack, during which an airplane hit the ship where he was stationed.  All of these records were associated with the claims file prior to the August 1988 rating decision was issued.  

Furthermore, the November 2016 JMR noted that 38 C.F.R. § 3.156(c) was applicable to the Veteran's claim for an earlier effective date because the RO granted service connection for hearing loss in March 2015 due to his military occupational specialty (MOS) of Aviation Support Tech, which is consistent with exposure to acoustic trauma in service.  The JMR also noted that the March 2015 VA examiner linked the Veteran's current hearing loss to his military noise exposure, which VA conceded.  The Veteran made similar contentions in December 2016.  

The March 2015 rating decision and the March 2015 VA examination report show that VA conceded the Veteran's in-service acoustic trauma exposure due to his MOS, which was garnered from his DD-214.  The March 2015 VA examiner referred to a February 2015 compensation and pension examination inquiry (VA Form 21-2507) that noted the DD-214 showing that the Veteran's MOS was as an Aviation Support Equipment Technician (AS 76), which was highly probable for in-service noise exposure.  As mentioned above, the DD-214 was of record prior to the issuance of the August 1988 rating decision.  

Given this evidence, an earlier effective date due to reconsideration of the Veteran's claim under 38 C.F.R. § 3.156(c) is not warranted as the October 2014 official service department records are not relevant to the August 1988 denial of service connection for hearing loss.  

Overall, the evidence does not reflect that the Veteran filed any additional claim for service connection for hearing loss following the August 1988 rating decision until July 2013, when he filed a VA Form 21-526EZ.  As a result of this application, the claim was reopened, granted on the merits, and awarded benefits effective July 10, 2013, the date the claim was received by VA. 

Based on the law and evidence outlined above, entitlement to service connection has already been granted to the earliest available date, the date of his claim for benefits.  While the Veteran filed a claim in January 1947 with an inquiry as to the status of the claim in January 1949, he did not submit additional evidence as requested at that time.  The claim for service connection was ultimately denied by an August 1988 rating decision.  He was notified of this decision but did not appeal and did not submit any new evidence within one year; thus, the decision became final. 

Alternatively, the Veteran contended in a December 2016 statement that his hearing loss disability should be assigned an effective date of August 2, 2002.  In August 2002, he submitted a National Archives and Records Administration (NARA) questionnaire about military service form requesting his service records.  In conjunction with this form, he submitted a statement asking VA to forward all personal records from his service and he asserted that he had an in-service injury and was treated for the left ear in service.  In the December 2016 statement, he asserts that VA should interpret the August 2002 records request and statement as an informal claim under its duty to liberally and sympathetically construe statements submitted by a claimant.  However, a reasonable reading of this request for records and the attached statement would not lead to a conclusion that he was requesting a determination of entitlement or that he was evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1(p).  Thus, the August 2002 submissions cannot be construed as an informal claim.  

VA is precluded, as a matter of law, from granting an effective date for the award of service connection prior to July 10, 2013, because it did not receive an informal claim showing an intent to apply for one or more VA benefits.  Therefore, this appeal is denied because the RO has already assigned the earliest possible effective date provided by law.

Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).


ORDER

An effective date prior to July 10, 2013, for the grant of service connection for hearing loss is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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