Entitlement to an effective date earlier than February 19, 2016 for the award of service connection for bilateral hearing loss is denied.
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Citation Nr: 19170363 Decision Date: 09/12/19 Archive Date: 09/11/19 DOCKET NO. 17-29 886 DATE: September 12, 2019 ORDER Entitlement to an effective date earlier than February 19, 2016 for the award of service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than February 19, 2016 for the award of service connection for tinnitus is denied. Entitlement to an effective date earlier than February 19, 2016 for the award of service connection for a lumbar spine strain is denied. Entitlement to an effective date earlier than February 19, 2016 for the award of service connection for left lower extremity radiculopathy is denied. Entitlement to an effective date earlier than February 19, 2016 for the award of service connection for right lower extremity radiculopathy is denied. FINDING OF FACT The Veteran’s application to reopen his claims for service connection for his lower back, bilateral lower extremity radiculopathy, hearing loss, and tinnitus disabilities, that were previously denied in February 2006, and not appealed, was received on February 19, 2016; and no previous communication or event in the record justifies an effective date prior to that date for those conditions. CONCLUSION OF LAW The criteria for effective dates earlier than February 19, 2016 for the awards of service connection for a lumbar strain, bilateral lower extremity radiculopathy, bilateral hearing loss, and tinnitus have not been met. 38 U.S.C. §§ 501, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1973 to August 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in June 2016 and July 2016. During this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) at his local VA regional office (RO) in June 2019. Effective Date Effective dates earlier than February 19, 2016 for the awards of service connection for bilateral hearing loss, tinnitus, a lumbar spine strain, and bilateral lower extremity radiculopathy In general, the effective date of an evaluation and an award for compensation or for an increased evaluation under VA regulations is the date that a claim for a benefit is received or the date that the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. This general rule applies with equal force to applications to reopen a claim that was previously denied. Id. Here, the Veteran originally filed a claim for service connection for audiological and lumbar spine disabilities (which is the etiology of his lower extremity radiculopathy) in September 2005. These claims were denied in February 2006, and the Veteran did not appeal that denial, submit new evidence regarding these disabilities, or communicate with VA regarding these disabilities until February 19, 2016. Consequently, the February 2006 denial is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran applied to reopen these claims in an application that was received by VA on February 19, 2016. VA regulations set this date as the earliest date on which the effective date service connection can be granted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran advances two interrelated arguments as to why an earlier effective date should be granted in this case in both his testimony and his submissions to VA. He states that his original claim form in 2005 was filled out with the assistance of another person. At times, he appears to identify this individual as a VA employee. (“It was my first visit to VA to put in for compensation… the lady acting like she was in a hurry ¬– and I’m not trying to bash the VA or anything.”) At other times, however, he describes this individual in a way that is more consistent with being the employee of a VSO or other veteran’s service agency, describing this individual not as a person working for VA and making a decision on his claim, but waiting to hear from VA regarding a pending decision. He quotes her saying, “If we hear anything before you do, we’ll call you” in response to his attempts to follow up on his claim in 2005/2006. Apparently, this individual transposed 2 numbers in the Veteran’s PO Box address where he received his mail. As a result, VA’s attempts to contact the Veteran regarding his 2005 claim in 2006 were unsuccessful and resulted in the mail being returned. The Veteran assigns this error entirely to VA, and therefore argues that he should be entitled to compensation dating back to his original claim in 2005. Relatedly, the Veteran argues that VA was required to attempt to contact him by phone once it became apparent that he could not be contacted at the address he provided on his claim form. VA regulations provide that Veterans are to be notified in writing of an adverse decision. 38 U.S.C. § 5104; 38 C.F.R. § 7103(f). Here, the record reflects that VA sent that notice to the address the Veteran provided, his address of record, and additionally sent notice to his representative in February 2006. This notice fully complies with VA’s regulatory duty. Id. To the extent that the Veteran’s claim for an earlier effective date rests on his assertion that VA was required to contact him by phone, such an argument is not supported by the regulation. To the extent that the Veteran’s claim for an earlier effective date rests on an allegation that a VA employee made an error, resulting in VA having the wrong address in 2005/2006, the Board finds that the record is not sufficient to permit VA to make a finding that this is factually what happened. As described above, while the Veteran identifies the individual who helped him fill out his claim form in 2005 as a VA employee, his description of this individual’s behavior and subsequent statements is more consistent with this individual being an employee of the Veteran’s representative. Consequently, the Board cannot find that this error is VA’s to rectify. Therefore, an effective date earlier than February 19, 2016 for the awards of service connection for the listed disabilities must be denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, Associate 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.