Citation Nr: 18132311
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-40 986A
DATE:	September 6, 2018
ORDER
Entitlement to an effective date earlier than March 2, 2012, for the award of service connection for bilateral hearing loss is denied.
FINDING OF FACT
The evidence of record fails to reflect a basis for awarding an effective date prior to March 2, 2012, for the award of service connection for bilateral hearing loss.   

CONCLUSION OF LAW
The criteria for entitlement to an effective date earlier than March 2, 2012, for the grant of service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. 5110; 38 C.F.R. 3.400.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from November 1945 to February 1947. 
This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs Regional Office (RO).  That rating decision, in pertinent part, granted service connection for bilateral hearing loss and assigned an effective date of March 2, 2012 for that award.
The Veteran contends that he is entitled to an earlier effective date for the award of service connection for bilateral hearing loss.
Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. 5110; 38 C.F.R. 3.400.
Specific to claims to reopen (other than in cases where service department records were received after the final disallowance), the effective date for the grant of service connection based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. 3.400 (r). 
If a veteran does not file a timely notice of disagreement within one year of receiving notice of an agency determination, the decision becomes final. See 38 U.S.C. 7105; 38 C.F.R. 20.302, 20.1103.
A “claim” or “application” is defined by VA regulation 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) (prior to 2015). An informal claim is “[a]ny communication or action, indicating an intent to apply for one or more benefits...” and must identify the benefit sought. 38 C.F.R. 3.155 (a) (prior to 2015). VA has amended the regulations to require submissions on standardized claim forms. However, this change does not apply to the Veteran’s appeal. 
Service connection for hearing loss was originally denied by way of a June 1967 rating decision. The Veteran did not submit a notice of disagreement and no new evidence relevant to the claim was received within one year of the issuance of the denial. Therefore, the rating decision became final. 38 U.S.C. 7105; 38 C.F.R. 3.156 (b), 20.302, 20.1103. 
On March 2, 2012, the Veteran submitted a formal application for service connection for hearing loss.  The RO accepted this application as a petition to reopen a claim of service connection for hearing loss. 
An August 2013 VA examination report included a medical opinion attributing the Veteran’s current hearing loss disability to his period of active service.
In a September 2013 rating decision, the RO granted service connection for bilateral hearing loss. An effective date of March 2, 2012 was assigned; the date the RO received the Veteran’s claim. 
The Veteran contends that the effective date for his service-connected hearing loss disability should be earlier than the assigned date of March 2, 2012 because he initially filed a claim for that disability in 1967. 
Nonetheless, for the reasons stated below, the Board finds that an earlier effective date is not warranted.
An effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. 5110 (a); 38 C.F.R. 3.400 (q)(1)(ii). There is no provision in either the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant military records. See 38 U.S.C. 5110 (i); 38 C.F.R. 3.105, 3.156(c). 
The record does not include any formal or informal communication from the Veteran or his representative indicating intent to apply for service connection for hearing loss between June 1967 and March 2, 2012. Rather, March 2, 2012 is the earliest date upon which a request to reopen a claim for hearing loss was filed.
Given the established finality of the June 1967 rating decision, the effective date of the grant of service connection cannot, by regulation, be earlier than the date of the Veteran’s new claim for the benefit filed after the last, final disallowance of his earlier claim. See 38 U.S.C. 5110 (a); 38 C.F.R. 3.400 (q)(1)(ii). Indeed, the RO assigned the current effective date commensurate with the date of receipt of the claim to reopen from which this appeal stems. 
Finally, neither the Veteran nor his representative has presented an argument that clear and unmistakable error was committed in the original decision, nor have they presented an alternative legal theory for the basis that an earlier effective date is warranted. 
While the Board is sympathetic to the Veteran, it is bound by the applicable statutes and regulations. 38 U.S.C. 7104 (c). Therefore, the criteria for an effective date earlier than March 2, 2012, for the grant of service connection for bilateral hearing loss are not met and the benefit of the doubt doctrine does not apply as the preponderance of the evidence is against the claim. See 38 U.S.C. 5107; 38 C.F.R. 3.102.

 
D. JOHNSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. G. Mazzucchelli, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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