Citation Nr: 1124541	
Decision Date: 06/29/11    Archive Date: 07/06/11

DOCKET NO.  08-13 085	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to an effective date earlier than January 25, 2005, for the grant of service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 1969 to March 1971.

This appeal to the Board of Veterans' Appeals (Board) is from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which, in pertinent part, granted service connection for tinnitus and assigned an initial disability rating of 10 percent, effective from January 25, 2005.  The Veteran perfected an appeal as to the effective date assigned for service connection for tinnitus.

In June 2010, the Veteran testified during a hearing at the RO before the undersigned.  A transcript from the hearing is currently of record.

In his April 2008 substantive appeal, the Veteran raised the matter of whether there was clear and unmistakable error (CUE) in the October 1971 rating decision, that denied service connection for the Veteran's bilateral hearing loss (and did not consider his tinnitus).  However, the matter of whether there was CUE in the October 1971 rating decision has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  On April 12, 1971, the RO received the Veteran's formal claim for service connection for bilateral hearing loss.  

2.  The Veteran's April 12, 1971 formal claim for VA benefits is not referable to tinnitus.

3.  On January 25, 2005, the RO received the Veteran's formal claim for service connection for tinnitus.

4.  In the September 2006 rating decision, service connection for tinnitus was granted, effective January 25, 2005.

6.  The Veteran did not submit a claim, either formal or informal, for service connection for tinnitus prior to January 25, 2005.


CONCLUSION OF LAW

Entitlement to an effective date prior to January 25, 2005, for the grant of service connection for tinnitus is not warranted.  38 U.S.C.A. §§ 5101, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.1(p), 3.155, 3.400 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The Veteran's tinnitus claim arises from his disagreement with the effective date assigned following the grant of service connection.  Once service connection is granted, the claim is substantiated and additional notice is not required.  Thus, any defect in the notice provided is not prejudicial to the Veteran.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  

In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the Veterans Law Judge outlined the issue on appeal and suggested that any evidence tending to show that evidence regarding the earliest date of submission of the claim would be helpful in establishing the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010).  Here, the Veteran's STRs and post-service private outpatient treatment records have been obtained by the VA.  The Veteran was afforded a VA examination for his tinnitus.  Thus, the Board does not have notice of any additional relevant evidence that is available but has not been obtained.  For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further notice to the Veteran or assistance to the Veteran with the development of evidence is required.

II. Factual Background and Legal Analysis

The Veteran seeks an earlier effective date for the grant of service connection for tinnitus.  He contends that March or April 1971 is the more appropriate date for his award.  

The record reflects that, on January 25, 2005, the RO received the Veteran's formal claim of entitlement to service connection for tinnitus.  This represents the earliest formal claim of record for tinnitus.  

In the September 2006 rating decision, service connection for tinnitus was granted, effective January 25, 2005.  The Veteran contends that he is entitled to an effective date earlier than January 25, 2005 for this award of service connection for tinnitus.

Specifically, the Veteran asserts that an earlier effective date for the grant of service connection for tinnitus is warranted because, in April 1971, he filed a claim for service connection for his bilateral hearing loss.  He believes that a claim for service connection for tinnitus should have been inferred and raised by VA when he filed his April 1971 claim for service connection for bilateral hearing loss.  According to the Veteran, "VA did not connect the dots between the claimed hearing loss and tinnitus" (see April 2008 substantive appeal).

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(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).

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.  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.  38 C.F.R. § 3.155.

In the present case, the Veteran separated from the active military service in March 1971.  The Veteran does not contend that he submitted a formal claim for service connection for tinnitus within one year of his discharge from the active military service.  Instead, the Veteran contends that there was (or should have been) an inferred claim for service connection for tinnitus within one year of his discharge from the active military service.  

The record reflects that, in April 1971, the Veteran submitted a formal claim for service connection for bilateral hearing loss that is not referable to his having tinnitus.  However, the Veteran asserts that the RO should have inferred a claim for service connection for tinnitus from his claim and/or from his July 1971 VA audiological examination for his bilateral hearing loss claim.  However, the April 1971 formal claim is not referable to tinnitus, although the July 1971 VA audiological examination report indicates that he had constant tinnitus in both ears.  

Significantly, however, the first evidence of an intention by the Veteran to file a claim for service connection for tinnitus is documented in his formal claim that was not received by the RO until January 25, 2005.  

In this regard, the Board observes that 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 require a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing); see also King v. Shinseki, 23 Vet. App. 464, 469 (2010).

Here, the RO granted service connection and assigned a 10 percent disability evaluation, effective January 25, 2005, the date of receipt of the Veteran's original claim for service connection for tinnitus.  See 38 C.F.R. § 3.155.  An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.  Lalonde v. West, 12 Vet. App. 377, 382 (1999).  Thus, even though the July 1971 VA examination report reflects the Veteran's complaint of constant tinnitus, because he did not file a formal or informal claim for service connection for tinnitus, prior to January 25, 2005, VA is precluded, as a matter of law, from granting an effective date for service connection prior to January 25, 2005.  As such, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law.  

Although the Board is sympathetic to his claim, because the Veteran did not submit a claim, either formal or informal, for service connection for tinnitus, prior to January 25, 2005, the Board is without the authority to grant his claim on an equitable basis, and instead is constrained to follow the specific provisions of law.  See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  


      ORDER

An effective date earlier than January 25, 2005 for the grant of service connection for tinnitus is denied.



____________________________________________
D.J. DRUCKER
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs