Citation Nr: 1014708	
Decision Date: 04/16/10    Archive Date: 04/29/10

DOCKET NO.  04-41 598	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUE

Entitlement to an effective date earlier than December 9, 
2005, for the grant of service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Michael A. Leonard, Attorney 
at Law


ATTORNEY FOR THE BOARD

C. L. Krasinski, Counsel 




INTRODUCTION

The Veteran had active military service from August 1964 to 
August 1968.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a September 2004 rating decision of the RO 
that granted service connection for hearing loss and 
evaluated the condition as noncompensable effective on 
February 5, 2004.  

In June 2006, the RO also granted service connection for 
tinnitus and evaluated that condition as 10 percent disabling 
effective on December 9, 2005.  The Veteran perfected timely 
appeals of these matters, challenging the rating for his 
hearing loss and challenging the effective date for the grant 
of service connection for tinnitus.

In November 2006, the RO increased the evaluation of the 
Veteran's hearing loss to 10 percent disabling effective on 
June 15, 2006.  

In an April 2008 decision, the Board denied the claims for a 
higher initial rating for the service-connected hearing loss 
and for an effective date earlier than December 9, 2005 for 
the award of service connection for tinnitus.  A timely 
appeal of the decision on the effective date issue was filed 
to the United States Court of Appeals for Veterans Claims 
(Court). 

In a December 2009 Memorandum Decision, the Court vacated 
that part of the decision that had denied the claim for an 
effective date earlier than December 9, 2005 for the award of 
service connection for tinnitus and remanded this matter to 
the Board for compliance with directives of the Court. 


FINDINGS OF FACT

1.  In the February 5, 2004 statement and the June 9, 2004 
formal claim, the Veteran filed a claim of service connection 
for bilateral hearing loss.  

2.  The Veteran provided clarification of his original claim 
for compensation by indicating that his tinnitus was 
"service connected" in course of perfecting his appeal as 
to a "down stream issue" in a timely manner.   


CONCLUSION OF LAW

An effective date of February 5, 2004 is the earliest that 
can reasonably be construed as the date of receipt of an 
informal claim of service connection for bilateral hearing 
loss, including tinnitus.  38U.S.C.A. §§ 5107, 5110 (West 
2002); 38 C.F.R. §§ 3.1, 3.151, 3.155(a), 3.400 (2009).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  

The notice requirements apply to all five elements of a 
service connection claim: 1) veteran status; 2) existence of 
a disability; 3) a connection between the veteran's service 
and the disability; 4) degree of disability; and 5) effective 
date of the disability.  Dingess v. Nicholson, 19 Vet. App. 
473 (2006).  
 
The RO provided the Veteran with proper VCAA notice in March 
2006 and May 2006.  The letters notified the Veteran of what 
information and evidence must be submitted to substantiate 
the claim for service connection, as well as what information 
and evidence must be provided by the Veteran and what 
information and evidence would be obtained by VA.  

The Veteran was also told to inform VA of any additional 
information or evidence that VA should have, and was told to 
submit evidence in support of his claim to the RO.  The 
content of the letters complied with the requirements of 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).

The requirements of VCAA also include notice of a disability 
rating and an effective date for award of benefits if service 
connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  

The May 2006 letter provided the Veteran with notice of the 
laws regarding degrees of disability or effective dates and 
the claim for an earlier effective date was readjudicated in 
the October 2007 Statement of the Case.  Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006).  

While the Dingess notice was not provided prior to the 
initial adjudication, the Veteran has had the opportunity to 
submit additional argument and evidence, and to meaningfully 
participate in the adjudication process and the claim was 
readjudicated in October 2007.  

The Veteran has not alleged any prejudice as a result of the 
untimely notification, nor has any been shown.  The issue on 
appeal is entitlement to an earlier effective date.  It is 
also clear from the Veteran's arguments that he has actual 
knowledge as to how an effective date is assigned.  See the 
Veteran's statements dated in December 2006 and November 
2007.  

The Veteran has received all essential notice, has had a 
meaningful opportunity to participate in the development of 
his claim, and is not prejudiced by any technical notice 
deficiency along the way.  

The Board finds that the duty to assist has been met.  There 
is no identified relevant evidence that has not been 
accounted for.  In March 2006, the Veteran informed the RO 
that he had no additional information or evidence to submit.  
The evidence needed to decide the appeal associated with the 
claims folder.  

Under the circumstances, the Board finds that there is no 
reasonable possibility that further assistance is required to 
assist the Veteran in substantiating his claim for an earlier 
effective date.  Hence, no further notice or assistance to 
the Veteran is required to fulfill VA's duty to assist him in 
the development of the claim.  Smith v. Gober, 14 Vet. App. 
227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  


Law and Regulations

Generally, 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); 38 C.F.R. § 3.400.  

Under 38 U.S.C.A. § 5110(b)(1) and 38 C.F.R. § 
3.400(b)(2)(i), the effective date for a grant of direct 
service connection will be the day following separation from 
active service or the date entitlement arose if the claim is 
received within one year after separation from service.  
Otherwise, the effective date is the date of receipt of 
claim, or date entitlement arose, whichever is later.  

Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for 
presumptive service connection will be the date entitlement 
arose, if a claim is received within one year after 
separation from active service.  Otherwise, the effective 
date will be the date of receipt of the claim, or the date 
entitlement arose, whichever is later.  38 C.F.R. 
§ 3.400(b)(2).  

The term "claim" or "application" means a formal or informal 
communication in writing requesting a determination of 
entitlement or evidencing a belief of entitlement, to a 
benefit.  38 C.F.R. § 3.1(p).  "Date of receipt" generally 
means the date on which a claim, information or evidence was 
received by VA.  38 C.F.R. § 3.1(r).  

An informal claim is any communication or action, indicating 
an intent to apply for one or more benefits under the laws 
administered by VA, from a claimant, his or her duly 
authorized representative, a Member of Congress, or some 
person acting as next friend of a claimant who is not sui 
juris may be considered an informal claim.  Such informal 
claim must identify the benefit sought.  38 C.F.R. § 
3.155(a).

VA is required to look to all communications from the 
appellant which may be interpreted as applications or claims, 
formal and informal, for benefits.  In particular, VA is 
required to identify and act on informal claims for benefits.  
38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); See 
Servello v. Derwinski, 3 Vet. App. 196 (1992).  All that is 
required is that the communication indicates an intent to 
apply for one or more benefits under the laws administered by 
the Department, and identify the benefits sought.  Rodriguez 
v. West, 189 F.3d 1351 (1999).  


Analysis

In a June 2006 rating decision, the RO granted service 
connection for tinnitus, effective on December 9, 2005 that 
was determined to be the date of receipt of the claim for 
benefits.  

In this case, the evidence shows that the Veteran filed a 
statement at the RO on December 9, 2005 stating "my 
[t]innitus is service connected."  The RO interpreted this 
statement as claiming service connection and, after 
developing the claim, granted service connection for tinnitus 
effective on December 9, 2005.  

The Veteran and his representative argue that the effective 
date for the award of service connection for tinnitus should 
be February 5, 2004, the date of the Veteran's original claim 
for benefits for hearing loss.  

The Veteran and his representative argue that the claim for 
service connection for hearing loss encompassed the claim of 
service connection for tinnitus and VA should have taken all 
disabilities into account for hearing loss including 
tinnitus.  

The Board emphasizes that a veteran is required to file a 
claim to obtain benefits and that, at a minimum, the veteran 
must identify the benefit sought in such a claim.  See 
38 C.F.R. §§ 3.1(p), 3.151, 3.155; see also Kessel v. West, 
13 Vet. App. 9, (1999).  

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.  Such informal claim must identify the 
benefit sought.  VA is required to identify and act on 
informal claims for benefits.  38 C.F.R. § 3.155(a); see 
Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).  

The United States Court of Appeals for the Federal Circuit 
has emphasized that VA has a duty to fully and 
sympathetically develop a Veteran's claim to its optimum.  
Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).  This 
duty requires VA to "determine all potential claims raised by 
the evidence, applying all relevant laws and regulations,"  
Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and 
extends to giving a sympathetic reading to all pro se 
pleadings of record.  Szemraj v.  Principi, 357 F.3d 1370, 
1373 (Fed. Cir. 2004).  If VA fails to forward an application 
form to the claimant after receipt of an informal claim, then 
the date of the informal claim must be accepted as the date 
of claim for purposes of determining an effective date.  Id. 
at 200.  

The law generally requires VA to "give a sympathetic reading 
to the Veteran's filings by 'determining all potential claims 
raised by the evidence, applying all relevant laws and 
regulations.'"  See Szemraj v. Principi, 357 F.3d 1370, 1373 
(Fed. Cir. 2004) (quoting Roberson v. Principi, 251 F.3d 
1378, 1384 (Fed. Cir. 2001)).  

Nevertheless, it is well settled that an intent to apply for 
benefits is an essential element of any claim, whether formal 
or informal, and, further, the intent must be communicated in 
writing.  See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 
(Fed. Cir. 2006) (holding that the plain language of the 
regulations requires a claimant to have an intent to file a 
claim for VA benefits); Criswell v. Nicholson, 20 Vet. App. 
501 (2006); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 
1999) (noting that even an informal claim for benefits must 
be in writing); Brannon v. West, 12 Vet. App. 32, 35 (1998); 
38 C.F.R. § 3.27 (1945) (stating that before VA can 
adjudicate a claim for benefits, "the claimant must submit a 
written document identifying the benefit and expressing some 
intent to seek it"); 38 C.F.R. § 3.1(p) (2008) (defining 
"claim" as "a formal or informal communication in writing 
requesting a determination of entitlement or evidencing a 
belief in entitlement, to a benefit").  

The Board reviewed all communications in the claims file to 
determine whether the Veteran had filed an earlier informal 
or formal claim for service connection for tinnitus before 
December 9, 2005.  

The Board has reviewed the February 5, 2004 statement in 
which the Veteran reported having a loss of hearing.  

The Board finds that the Veteran did not identify tinnitus as 
part of his claimed hearing loss in the February 5, 2004 
statement.  

However, the present case is somewhat similar to the facts 
presented in Clemons v. Shinseki, 23 Vet. App. 1 (2009).  

In Clemons, the Court held that a claim of service connection 
may include any disability that may reasonably be encompassed 
by several factors, including the claimant's description of 
the claim, the symptoms the claimant describes and the 
information the claimant submits or that the Secretary 
obtains in support of the claim.  Clemons, 23 Vet. App. at 5.  

Here, during the course of the appeal, the Veteran also 
provided clarifying information about the symptoms that 
encompassed his claim of service connection in a timely 
fashion.  There was also additional development that 
ultimately led to the grant of service-connecton of tinnitus.  

A June 2005 VA audiometric examination report noted that the 
Veteran reported having had tinnitus for the last few years.  

In Brannon v. West, 12 Vet. App. 32 (1998), the Court 
observed that, while VA must interpret a claimant's 
submissions broadly, it is not required to conjure up issues 
that were not raised by the claimant.  The Court has further 
held that VA is not held to a standard of prognostication 
when determining what issues are presented.  See Talbert v. 
Brown, 7 Vet. App. 352, 356- 57; Allin v. Brown, 6 Vet. App. 
207, 213 (1994) ("[t]here must be some indication...that [a 
claimant] wishes to raise a particular issue...The indication 
need not be express or highly detailed; it must only 
reasonably raise the issue."  

Significantly, in providing a Supplement Statement of the 
Case to the Veteran in connection with a "down stream 
issue" from his original claim, the RO notified him that he 
was being afforded an additional 60 days to perfect his 
appeal as to any issues that was not included in his 
Substantive Appeal.  The notice was provided on October 31, 
2005.  

In a statement dated on December 9, 2005, the Veteran 
responded by stating that his tinnitus was "service 
connected."  

This statement shows a clear intent of claiming compensation 
benefits for tinnitus and, in connection with the earlier 
notice, serves to expand the scope of his original claim to 
include that of service connection for hearing loss to 
include that manifested by tinnitus.  

On this record, the Board must now reasonably construe the 
Veteran's original claim as encompassing an initial or 
informal request of service connection for tinnitus.  As 
such, the date of receipt of the informal claim on February 
9, 2004 marks the earliest date on which compensation 
benefits may be assigned for the service-connected tinnitus 
by operation of law.  

The effective date in this case must be either the date of 
receipt of the claim, or date entitlement arose, whichever is 
later.  The Board has sympathetically reviewed all statements 
made by the Veteran, but is bound by the law and lacks the 
authority to grant benefits on an equitable basis.  See 
38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. 
Brown, 6 Vet. App. 416, 425 (1994).  



ORDER

An effective date of February 9, 2004 for the award of 
service connection for tinnitus is granted.   


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs