**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No. 01-1865]{.smallcaps}

[Thomas L. Bingham, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

**On Appeal from the Board of Veterans\' Appeals**

**(Decided August 27, 2004 )**

***Barbara J. Cook*, of Cincinnati, Ohio, was on the brief for the
appellant.**

***Tim S. McClain*, General Counsel; *R. Randall Campbell*, Assistant
General Counsel; *Michael A. Leonard*, Deputy Assistant General Counsel;
and *Christine M. Cote*, all of Washington, D.C., were on the brief for
the appellee.**

Before KRAMER, *Chief Judge*, and KASOLD and HAGEL, *Judges*.

KRAMER, *Chief Judge*: The appellant, through counsel, appeals an
October 3, 2001, Board of Veterans\' Appeals (Board or BVA) decision in
which the Board denied an effective date prior to April 25, 1991, for
the award of service connection for bilateral hearing loss. Record (R.)
at 2, 4. The appellant and the Secretary each filed a brief, and the
appellant filed a reply brief. In a March 3, 2004, single‑judge
memorandum decision, the Court affirmed the October 2001 Board decision.
On March 22, 2004, the appellant filed a motion for reconsideration or,
in the alternative, a panel decision. The Court, in an April 30, 2004,
single-judge order, denied reconsideration. The Court will revoke its
April 2004 single‑judge order, will withdraw its March 2004 single-judge
memorandum decision, and will issue this opinion in their stead. For the
reasons that follow, the Court will affirm the October 2001 Board
decision.

**I. BACKGROUND**

The appellant served on active duty in the U.S. Army from November 1943
to May 1946, including combat service in World War II. R. at 31. His
service medical records (SMRs) reflect that during service he complained
of earaches. *See, e.g.*, R. at 7, 13-14, 15-17, 18, 21. An SMR dated in
January 1944 reflects that he had an earache in his left ear and that
apparently that ear had \"run in civilian life, \[one\] y\[ea\]r ago.\"
R. at 7. The report from his discharge examination reflects no
abnormalities related to his ears and 15/15 hearing bilaterally. R. at
26. A VA medical record, dated in August 1949, reflects that the
appellant was treated for his ear condition and that \"\[n\]o disease
\[was\] found.\" R. at 48; *see* R. at 47-49. In September 1949, he
filed a claim for, inter alia, service connection for \"\[l\]oss of
hearing\"; he asserted that that condition had its onset in 1946. R. at
52. In a letter received by VA that same month, Walter Segall, M.D.,
informed VA that he had seen the appellant on September 23, 1947, and
that he had diagnosed the appellant as having an \"\[i\]nner ear lesion,
left more than right.\" R. at 58. In another letter received by VA in
September 1949, M.G. Farinacci, M.D., informed VA that the appellant
\"ha\[d\] been under treatment since June 1, 1946\[,\]\" and that he
\"had an ear condition \[that\] ha\[d\] been progressively worse since
that date.\" R. at 59. The appellant underwent a VA examination in April
1950; he was diagnosed as having \"\[d\]eafness\[,\] partial\[,\]
chronic . . . \[b\]ilateral.\" R. at 90; *see* R. at 84-91. The Board,
in a November 1950 decision, denied service connection for, inter alia,
an ear condition. R. at 132. The Board concluded that the appellant\'s
ear condition preexisted service, noted that his discharge examination
report reflected \"no discernible ear abnormalities\[,\]\" and concluded
that the record did not \"show that the preservice ear condition was
aggravated by active service.\" *Id*. The Board ultimately concluded
that \"the evidence \[wa\]s insufficient to permit the grant of service
connection for an ear condition.\" *Id*. Following the appellant\'s
submission of additional evidence, the Board, in December 1954, again
denied service connection for an ear condition. R. at 195.

In December 1988, the appellant attempted to reopen his claim for
service connection for a hearing impairment. R. at 268. The Board, in a
June 27, 1990, decision, denied reopening. R. at 314. In a September 4,
1990, letter addressed to the Court and received by VA on April 25,
1991, the appellant wrote: \"Please be informed\[\] of an obvious error
of fact in the BVA decision . . . \[d\]ated June 27, 1990. Claimant
therefore files \[a\] motion requesting reconsideration.\" R. at 316. On
April 25, 1991, VA also received from the appellant correspondence that
VA eventually construed as a claim to reopen his claim for service
connection for hearing loss. R. at 319; *see* R. at 325; *see also* R.
at 621, 622. The Board denied reconsideration of its June 1990 decision
in August 1991 (*see* R. at 332, 339) and again in October 1991 (R. at
339). On September 16, 1991, the appellant filed with a VA regional
office (RO) a formal claim for service connection for \"\[t\]otal
\[d\]eafness.\" R. at 335. The RO, in April 1993, determined that the
appellant had not submitted new and material evidence with respect to
his claim for service connection for hearing loss. R. at 378‑79; *see*
R. at 383, 389‑92, 394, 409‑13. In September 1994, VA received a letter
from VA doctor Cheryl Longinotti, Coordinator of Otolaryngological
Rehabilitation; she informed VA that \"\[d\]ocumentation in \[the
appellant\'s\] possession suggests \[that\] he was exposed to gunfire
and reported to sick call complaining of earaches after such exposure\"
and that \"due to the relationship between gunfire and hearing loss, the
\[appellant\'s\] exposure is presumptive evidence that some hearing loss
may have occurred in the service.\" R. at 430. The Board, in November
1996, denied reopening on the basis that the appellant had not submitted
new and material evidence since the June 1990 BVA decision. R. at 453;
*see* R. at 456. With respect to Dr. Longinotti\'s letter, the Board
concluded that, although the letter was new, it was not material because
it \"relate\[d\] to the \[appellant\'s then-current\] level of
disability, not as to whether his hearing disorder was present in
service or shortly thereafter.\" R. at 452. The appellant appealed that
decision to the Court. *See* R. at 504-06, 522-31. The Court, in an
August 1998 decision, noted that the June 1990 BVA decision was
\"unappealed.\" R. at 536. The Court then reversed, on the basis of Dr.
Longinotti\'s letter, the November 1996 Board\'s determination that the
appellant had not submitted new and material evidence to reopen his
claim for service connection for bilateral hearing loss; the Court
remanded that claim to the Board for further development. R. at 536-37,
541.

The appellant underwent a VA audiological examination in October 1999
(R. at 585‑88); the examiner opined that the appellant\'s continually
deteriorating hearing was not related to any in‑service exposure to
excessive noise. *See* R. at 593, 617; *see also* R. at 574‑75. The
Board, in a February 2000 decision, citing to, inter alia, 38 U.S.C.
§ 1101 and 38 C.F.R. § 3.309, granted service connection on a
presumptive basis for bilateral hearing loss. R. at 610, 618. The Board
discounted the October 1999 examination report because the examiner
\"did not address the medical evidence \[that\] indicated that the
\[appellant\] had significant hearing loss within one year \[after\]
service.\" R. at 616. The Board then determined that \"\[c\]hronic,
bilateral sensorineural hearing loss was manifest to a compensable
degree within one year \[after\] separation.\" R. at 617. Explaining its
conclusion, the Board noted that \"Dr. Farinacci\'s written statements
clearly show that the \[appellant\] had a significant hearing loss . . .
only one month after his separation from service.\" R. at 617. The Board
further noted that \"Dr. Segall\'s written statement and the 1999 VA
examination report reveal\[\] that the \[appellant\'s\] hearing loss was
a sensorineural hearing loss\" and that \"\[s\]ubsequent reports . . .
suggest an unremitting progression of hearing loss since June 1946.\" R.
at 617. In a decision implementing the February 2000 BVA decision, the
RO granted service connection for bilateral hearing loss; the RO
assigned a 100% disability rating, effective April 25, 1991. R. at
621‑23. The RO noted that \"the first correspondence submitted by the
\[appellant\] following the \[June 1990\] BVA \[decision\] . . . \[in\]
which \[he\] specifically raised the issue of service connection for a
hearing loss was a letter received on \[April 25, 1991\]\"; the RO
concluded that \"\[t\]his is accepted as an informal claim to reopen the
previously denied issue of service connection for hearing loss.\" R. at
622. The appellant appealed that decision with respect to the effective
date assigned. R. at 641, 655, 670-71. He argued that the RO \"could
have possibly misinterpreted the Board . . . decision \[that his\]
bilateral hearing loss was manifested to a compensable degree within one
year \[after\] service.\" R. at 671.

The Board, in the October 2001 decision on appeal, denied an effective
date prior to April 25, 1991, for the award of service connection for
bilateral hearing loss. R. at 2, 4. The Board noted that \"\[t\]he
appellant\'s claim for entitlement to service connection for bilateral
hearing loss was denied in a final June 1990 Board decision\" (R. at 3)
and that, \"\[i\]n this case, service connection for bilateral hearing
loss was granted based on a reopened claim filed on April 25, 1991\" (R.
at 4). The Board then noted that \"the effective date of an award based
on a reopened claim for service connection shall be the date of receipt
of \[the\] claim, or \[the\] date \[that\] entitlement arose, whichever
is later.\" R. at 4 (citing 38 C.F.R. § 3.400(b)(2) (2000)). The Board
concluded that \"\[t\]he currently assigned effective date is . . .
based on the RO\'s receipt of the appellant\'s claim to reopen . . .
filed many years after his military separation.\" *Id*.

On appeal, the appellant argues that the Court should reverse the
decision on appeal and award him an effective date in September 1949 for
his award of service connection for bilateral hearing loss because
\"VA\'s failure to address the presumptive eligibility claim until
\[1993\] . . . meant that \[his\] 1949 claim for service connection on a
*theory* of presumptive eligibility remained open until the February
2000 grant.\" Appellant\'s Brief (Br.) at 3 (emphasis added); *see*
Appellant\'s Br. at 4‑6. In the alternative, he contends that a remand
is warranted because he \"submit\[ted\] new and material evidence during
the appeal period following the final 1990 BVA decision\" (Appellant\'s
Br. at 3) and the Board failed to consider 38 C.F.R. § 3.400(q).
Appellant\'s Br. at 7‑10. He further contends that his September 4,
1990, letter to the Board constituted a Notice of Appeal (NOA) to the
Court. Appellant\'s Br. at 7-8.

The Secretary counters that the appellant\'s first argument is
essentially a contention \"that there was clear and unmistakable error
(CUE) in the 19\[50\] and later final decisions.\" Secretary\'s Br. at
9. Regarding the appellant\'s second argument, the Secretary asserts
that, because \"the appeal period to which \[the a\]ppellant refers did
not turn into a grant of his benefit, but a denial of his claim,
\[§\] 3.400(q) is inapplicable.\" Secretary\'s Br. at 10. Finally, he
asserts that the Court, in its 1998 decision, foreclosed the
appellant\'s argument that he appealed the June 1990 BVA decision
(Secretary\'s Br. at 7-8) and that, in any event, the September 1990
letter to the BVA was a motion for BVA reconsideration and not an NOA as
to the June 1990 Board decision. Secretary\'s Br. at 11‑12. In his reply
brief, the appellant asserts that his first argument does not amount to
a CUE claim because he is contending that his 1949 claim for service
connection for hearing loss on a presumptive basis remained pending
before VA until the February 2000 Board adjudicated that claim. Reply
Br. at 2-4.

**II. ANALYSIS**

A Board determination of the proper effective date is a finding of fact.
*See Hanson v. Brown*, 9 Vet.App. 29, 32 (1996). The Court reviews
questions of fact using the \"clearly erroneous\" standard of review.
38 U.S.C. § 7261(a)(4). Under this standard, a Board finding of fact may
not be reversed unless the Court, in reviewing all the evidence of
record, \"\'is left with the definite and firm conviction that a mistake
has been committed.\'\" *Gilbert v. Derwinski*, 1 Vet.App. 49, 52 (1990)
(quoting *United States v. United States Gypsum Co*., 333 U.S. 364, 395
(1948)). When applying this standard, \"\'\[i\]f the \[Board\'s\]
account of the evidence is plausible in light of the record viewed in
its entirety, the \[Court\] may not reverse it even though convinced
that had it been sitting as the trier of fact, it would have weighed the
evidence differently.\'\" *Gilbert*, 1 Vet.App. at 52 (quoting
*Anderson v. City of Bessemer City*, 470 U.S. 564, 573‑74 (1985)). The
determination of the effective date for an award of service connection
based on a reopened claim is governed by 38 U.S.C. § 5110(a), which
provides:

> Unless specifically provided otherwise in this chapter, the effective
> date of an award based on . . . a claim reopened after final
> adjudication . . . 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. § 5110(a); *see* 38 C.F.R. § 3.400(q)(ii), (r) (2003).

As an initial matter, the Court notes that the appellant did not raise
before the Board any of the arguments that he now raises before the
Court. Nevertheless, the \"Court may hear legal arguments raised for the
first time with regard to a claim that is properly before the
\[C\]ourt.\" *Maggitt* *v. West*, 202 F.3d 1370, 1377 (Fed. Cir. 2000).
In the instant case, the appellant argues, in essence, that he filed two
*claims* for service connection in 1949, one for **direct service
connection for an ear condition and one for presumptive service
connection for that same condition, and that the *claim* for presumptive
service connection remained pending and unadjudicated until the February
2000 BVA decision awarded service connection for bilateral hearing loss
on a presumptive basis. *See* Appellant\'s Br. at 4-6, 10. The Court
finds that argument unpersuasive. Under 38 C.F.R. § 3.1(p), a
\"\[*c*\]*laim*\" is defined 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) (2003) (emphasis
added).** The benefit to which the appellant sought entitlement in
September 1949 was service connection for an ear condition. R. at 52.
The law makes it clear that service connection may be established \"by
affirmatively showing inception or aggravation during service \[direct
service connection\] *or* through the application of statutory
presumptions \[presumptive service connection\].\" 38 C.F.R. § 3.303(a)
(2003) (emphasis added). (In September 1949, that section was embodied
in 38 C.F.R. § 3.63(a) (1949)). **Thus, direct and presumptive service
connection are, by definition, two means (i.e., two *theories*) by which
to reach the same end, namely service connection. *See id*. It follows
logically that the appellant, in seeking service connection for an ear
condition in 1949, did not file two separate claims for that same
condition, although there may have existed *two theories* on which VA
should have, or did, consider the *one claim*.** *See Schroeder v.
West*, 212 F.3d 1265, 1269‑71 (Fed. Cir. 2000) (holding that, where
veteran presented *claim* for service connection for \"current
disability\" (bilateral eye condition) and such service‑connection
*claim* was well grounded based on in‑service exposure to Agent Orange,
duty to assist was triggered and VA had obligation to explore all legal
*theories*, including those unknown to veteran, by which veteran might
be awarded service connection for such current disability); *see also
Bielby v. Brown*, 7 Vet.App. 260, 262 (1994) (Court considered claim for
service connection for multiple sclerosis to be claim for both direct
and presumptive service connection for that condition**).** Moreover,
even if an appellant could file separate claims for direct and
presumptive service connection for the same condition, this appellant in
1949 filed only one claim for service connection for hearing loss. *See*
R. at 52.

As discussed above, the appellant\'s contentions in this regard all
appear to be based on his notion that a *theory* of entitlement (e.g.,
direct service connection or presumptive service connection) is
equivalent to a *claim* for benefits (e.g., service connection for
hearing loss). The authority upon which the appellant relies in his
motion for, inter alia, a panel decision, however, does not support the
contention that any purported failure by VA to consider a *theory* of
entitlement (e.g., presumptive service connection) renders a *claim* for
benefits (e.g., service connection for hearing loss) unadjudicated,
i.e., the appellant has not demonstrated that a purported incomplete
adjudication is the equivalent of unadjudicated. Specifically, those
Federal Circuit cases involve circumstances where there were *distinct
claims* for two different benefits, whereas this case involves only *one
claim* for one benefit, i.e., service connection for hearing loss. *See
Moody v. Principi*, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (restating that
VA must apply all relevant laws and regulations to determine all
potential \"claims\" raised by evidence; in that case, *claim for rating
of total disability based on individual unemployability* (TDIU) was
adjudicated but question remained as to whether VA had \"sympathetically
read \[that appellant\'s\] filings prior to June 24, 1994\[ (the
effective date of his TDIU rating)\], \[to\] determin\[e\] whether
\[that appellant had\] made an informal *claim for secondary service
connection* \[*for a psychiatric disorder*\]\" (emphasis added));
*Roberson v. Principi*, 251 F.3d 1378, 1383-84 (Fed. Cir. 2001) (VA must
\"determine all potential *claims* raised by the evidence, applying all
relevant laws and regulations, regardless of whether the *claim* is
specifically labeled as a \[certain\] *claim*\" (emphasis added); in
that case, VA, in adjudicating appellant\'s *service‑connection claim*,
had failed to recognize that *TDIU claim* also had been raised); *cf.*
*Szemraj v. Principi*, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004) (in
context of CUE case (i.e., where denial of claim had not been appealed),
stating that *Roberson*, *supra*, does not require VA, inter alia, to
develop evidence on appellant\'s *theory* of entitlement, rather it
requires VA to determine all \"*claims*\" presented (emphasis added)).
The Court therefore concludes that, even if the 1950 Board erred in not
considering the presumptive‑service‑connection *theory* for hearing
loss, there existed no separate presumptive‑service‑connection *claim*
that could have remained pending.

Consequently, because there are \"only two exceptions to the rule of
finality,\" the appellant was left with only two means by which to
overcome the finality of the November 1950 Board decision: (1) reopening
based on the presentation of new and material evidence or (2) CUE.
*Cook v. Principi*, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc)
(overruling *Hayre v. West*, 188 F.3d 1327 (Fed. Cir. 1999), and its
\"\'grave procedural error\'\" construct). Of the two, only the latter
could conceivably result in an earlier effective date for the award of
service connection for bilateral hearing loss because it is well
established that the effective date for an award based on a claim to
reopen is generally the date of the claim to reopen. *See Flash v.
Brown*, 8 Vet.App. 332, 340 (1995) (\"\[W\]hen a claim to reopen is
successful and the benefit sought is awarded upon readjudication, the
effective date is the date of the claim to reopen.\"); *see also
Sears* *v. Principi*, 16 Vet.App. 244, 246-50 (2002), *aff\'d*, 349 F.3d
1326 (Fed. Cir. 2003). The appellant has made it clear that the instant
appeal is not predicated upon CUE. *See* Reply Br. at 2-4. **In any
event, based on the foregoing, the Court concludes that the November
1950 Board\'s denial of service connection for an ear condition did not
leave open an unadjudicated claim for service connection for that same
condition on a presumptive basis. If the appellant believes that the
November 1950 Board erred with respect to its consideration or lack
thereof regarding presumptive service connection for an ear condition,
he is free to attack that decision on the basis of CUE.**

Turning to the appellant\'s other arguments, with respect to the 1990
Board decision, notwithstanding the appellant\'s argument that his
September 4, 1990, letter constituted an NOA as to that decision, the
Court notes that, in its 1998 decision, the Court deemed the June 1990
Board decision \"unappealed.\" R. at 536. Accordingly, the Court need
not consider the issue of whether the appellant appealed the June 1990
Board decision. *See Browder v. Brown*, 5 Vet.App. 268, 270 (1993)
(appellate courts generally will not reconsider issues that already have
been decided in previous appeal of same case). In any event, the
appellant\'s argument must fail. In this regard, the appellant has not
averred or demonstrated that any such purported NOA could have satisfied
the NOA‑filing requirements. First, the appellant has not demonstrated
that the purported NOA indeed was received by the Court in 1990. *See*
38 U.S.C. § 7266(a); *see also* U.S. V[et]{.smallcaps}.
A[pp]{.smallcaps}. R. 28(a)(5) (appellant\'s brief must contain \"an
argument . . . and the reasons for \[them\], with citations to the
authorities . . . relied on\"). To the contrary, the only \"received\"
stamp on the letter is what appears to be an April 25, 1991, date‑stamp
by VA. *See* R. at 317. Further, it is not clear with what VA entity the
document may have been filed (i.e., whether the document may have been
filed with the same RO from which his claim originated) and, in any
event, the document does not appear to have been filed with such an RO
within the 120‑day judicial‑appeal period (i.e., it was received on
April 25, 1991, which was 302 days after the date that notice was mailed
to him of the June 1990 BVA decision). *See* R. at 316‑17; *Jaquay v.
Principi*, 304 F.3d 1276, 1287-89 (Fed. Cir. 2002) (en banc). Finally,
the appellant has not demonstrated that equitable tolling could be
available under the tolling law applicable to this Court. *See Irwin v.
Dep\'t of Veterans Affairs*, 498 U.S. 89, 96 (1990); *Bailey v.
Principi*, 351 F.3d 1381, 1385 (Fed. Cir. 2003) (as to filing defective
pleading during statutory period); *Santana‑Venegas v. Principi*,
314 F.3d 1293, 1298 (Fed. Cir. 2002) (same).

**Finally, the appellant\'s argument regarding 38 C.F.R.
§ 3.400(q)(1)(i) is unavailing. In this regard, the Court notes that it
appears that that regulation applies to only the one-year period in
which an appellant may appeal an RO decision to the BVA--not to the
120-day period in which an appellant may appeal a final BVA decision to
the Court. *See* 38 C.F.R. § 3.400(q)(1)(i) (2003) (referring to
38 C.F.R. §§ 20.1103, 20.1104, and 20.1304(b)(1), all of which address
appeals of RO decisions to BVA). Notwithstanding the foregoing, even if
the Court were to conclude that 38 C.F.R. § 3.400(q)(1)(i) does apply to
the 120-day period in which an appellant may appeal a final Board
decision to the Court, in the instant case, the Court, in its 1998
decision, concluded that new and material evidence was not submitted
until September 1994 (*see* R. at 536-37); that determination will not
be reconsidered now** (*see Browder*, 5 Vet.App. at 270)**.
Consequently, in light of the fact that the RO had denied reopening in
April 1993, the appellant submitted new and material evidence after the
one-year appeal period already had run. Moreover, even assuming that the
September 1994 new and material evidence was submitted within one year
after an RO or Board decision, the April 25, 1991, effective date
currently assigned for his award of service connection for bilateral
hearing loss is commensurate with the application of 38 C.F.R.
§ 3.400(q)(1)(i) because the appellant already has been awarded an
effective date in April 1991--\"as though the \[April 1993 RO\] decision
had not been rendered.\" 38 C.F.R. § 3.400(q)(1)(i).**

Accordingly, the Court concludes that the appellant has not demonstrated
that the Board\'s denial of an effective date prior to April 25, 1991,
was clearly erroneous. *See Gilbert*, 1 Vet.App. at 53; *see also*
38 U.S.C. § 5110(a); *Flash*, 8 Vet.App. at 340 (when claim to reopen is
successful and benefit sought is awarded upon readjudication, effective
date is date of claim to reopen); 38 C.F.R. § 3.400(q)(1)(ii).

**III. CONCLUSION**

The Court\'s April 30, 2004, single-judge order is revoked, and the
Court\'s March 3, 2004, single‑judge memorandum decision is withdrawn.
Upon consideration of the foregoing analysis, the parties\' pleadings,
and the record on appeal, the October 3, 2001, BVA decision is AFFIRMED.