Citation Nr: 0812099 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-22 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an effective date prior to April 5, 2005, for the grant of service connection for tinnitus, evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran had active military service from January 1959 to March 1962. This matter arises from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In August 2007 the veteran indicated that he did not desire any hearing on this matter. FINDINGS OF FACT 1. A June 1963 rating decision denied service connection for tinnitus, and notice of the denial, with his appellate rights, was issued on June 24, 1963. 2. An appeal of the June 1963 RO denial was not completed within one year of issuance of notice thereof. 3. After the June 1963 rating decision, the first communication from the veteran seeking to reopen a claim of service connection for tinnitus was received on April 5, 2005. CONCLUSION OF LAW The criteria for an effective date prior to April 5, 2005, for the award of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 2002); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Notice 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As the August 2005 rating decision granted the veteran's service connection claim for tinnitus, such claim is now substantiated. As such, VA no longer has any further duty to notify the appellant how to substantiate the service connection claim. Moreover, his filing of a notice of disagreement as to the effective date assigned for the award does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). Rather, the veteran's appeal as to the assigned effective date triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This has been accomplished here, as will be discussed below. The April 2006 Statement of the Case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant regulations pertaining to the assignment of effective dates. In addition, an August 2007 VCAA letter explained how a disability rating is determined by VA for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. Therefore, the Board finds that the veteran has been informed of what was necessary to achieve an earlier effective date for the grant of entitlement to service connection for tinnitus. With regard to the duty to assist, the claims file contains the veteran's service medical records and VA examination reports. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice, and the veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. Legal criteria and analysis In a June 1963 rating decision, the RO denied, in pertinent part, service connection for tinnitus. The veteran was notified of the denial, with his appellate rights, and did not appeal. The June 1963 rating decision therefore became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). Applicable regulatory and statutory provisions stipulate that the effective date for an award of service connection based on a claim reopened after final disallowance, as in the instant case, will be the date of receipt of the application to reopen, or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(r). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is 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). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Since the veteran did not perfect an appeal of the June 1963 RO decision, it became final and is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C.A. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). CUE in the June 1963 rating decision has not been alleged, and that rating decision is a legal bar to an effective date prior to the date of the decision. The only question before the Board at this time is whether subsequent to the June 1963 rating decision and prior to April 5, 2005 he communicated a timely substantive appeal, or an intent to reopen his claim seeking service connection for tinnitus. 38 C.F.R. § 3.155. Nothing in the claims file received during this time period may be construed as a substantive appeal nor formal or informal claim seeking to reopen the claim of service connection for tinnitus. In fact, the veteran does not allege he submitted a timely substantive appeal or an earlier application to reopen the claim. The veteran's main assertion in this case is that since his tinnitus began during service, the effective date for the grant of service connection should be effective from that time (i.e., tank fire in 1959). Under the controlling law and regulations (outlined above), however, the award of compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(r). As such, the April 5, 2005 date of claim is the appropriate effective date here, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. 38 C.F.R. § 3.400. In sum, the evidence of record provides no basis for an award of service connection for tinnitus prior to April 5, 2005. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to an effective date earlier than April 5, 2005, for the grant of service connection for tinnitus is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs