Citation Nr: 0812884	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  05-31 786	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to an effective date earlier than June 26, 1989, 
for service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate 
for Veterans Affairs


ATTORNEY FOR THE BOARD

S. M. Kreitlow, Associate Counsel




INTRODUCTION

The veteran had active military service from December 1968 to 
August 1970.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from rating decisions of the Department of 
Veterans Affairs (VA) Regional Office (RO) in San Juan, 
Puerto Rico.


FINDINGS OF FACT

1.  The earliest claim for service connection for tinnitus 
found in the claims file was received on October 20, 1983, 
which remained unadjudicated until 1994.

2.  The veteran appealed the 1994 decision to the Board, 
which eventually granted service connection in a May 2002 
decision.  


CONCLUSION OF LAW

The criteria for an effective date of October 20, 1983, for 
service connection for tinnitus are met.  38 U.S.C.A. 
§§ 5103, 5103A, 5107, 5108, and 5110 (West 2002 & Supp. 
2007); 38 C.F.R. §§ 3.155, 3.159, 3.160 and 3.400 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 
& Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) describe VA's duties to notify and assist claimants 
in substantiating a claim for VA benefits.   

In light of the favorable decision contained herein, that is, 
the granting of the claim, to the extent that there may be 
any deficiency of notice or assistance, the Board finds that 
there is no prejudice in proceeding with the veteran's claim. 

The record reflects that in a May 2002 decision, the Board 
granted service connection for tinnitus.  In that decision 
the Board noted the appeal had arisen from a 1994 rating 
action, which in turn, the RO essentially determined had come 
from a June 26, 1989 claim for benefits.  The RO then 
assigned June 26, 1989 as the effective date for the 
veteran's award of service connection.  The veteran seeks an 
even earlier effective date, arguing he was granted service 
connection for hearing loss from December 1972, and that 
since his tinnitus existed at that time, he should be awarded 
a 1972 effective date for service connection for tinnitus.  

The assignment of effective dates of awards is generally 
governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007) and 
38 C.F.R. § 3.400 (2007).  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 therefor."  
38 U.S.C.A. § 5110(a) (West 2002).  The implementing 
regulation clarifies this to mean that the effective date of 
an evaluation and an award of compensation based on an 
original claim "will be the date of receipt of the claim or 
the date entitlement arose, whichever is the later."  
38 C.F.R. § 3.400 (2007).  

The record shows the veteran submitted a claim for service 
connection for an ear condition in December 1972, and 
subsequent records showed the presence of hearing loss for VA 
purposes.  Significantly, he did not mention tinnitus, and 
none of the records at that time showed tinnitus then to be 
present. He was awarded service connection for hearing loss 
in a 1973 rating action, effective from December 1972.  

Thereafter, communications from the veteran to the RO fail to 
mention tinnitus until an October 20, 1983 correspondence 
submitted in connection with a claim for an increased rating 
for hearing loss.  There the veteran wrote, "To all of this, 
the tinnitus condition that I have had since 1969 ... is 
unbearable.  This condition I had told you before on one of 
the occasions when I had visited the VA Hospital ... and [the 
doctor] told me that there was no cure for that nor any 
medicine for that condition.  I am asking for compensation 
from the date I was discharged."  

Any communication indicating an intent to apply for benefits 
from a claimant may be considered an informal claim.  Such 
informal claim must identify the benefit sought.  38 C.F.R. 
§ 3.155(a) (2007).  The veteran's statement "I am asking for 
compensation" clearly expresses an intent to apply for 
benefits ("asking for") and the benefit sought 
("compensation").  The Board finds, therefore, that the 
veteran's October 20, 1983, statement was an informal claim 
for service connection for tinnitus.  This claim went 
unadjudicated until the 1994 rating action that the veteran 
successfully appealed to the Board.  Since by October 1983, 
the medical evidence showed a number of complaints of 
tinnitus, under these circumstances, the criteria for an 
award of an effective date for the grant of service 
connection for tinnitus from October 20, 1983, are met.

The veteran has made allegations that the VA doctors knew of 
his condition and were negligent in not fully informing him 
of his condition, not putting it in the medical records, and 
not referring him to compensation and pension services.  
Although the Board is sympathetic to the veteran and the fact 
that he feels he was not advised correctly by his VA doctors, 
the law prohibits the assignment of an effective date for 
service connection prior to a claim for service connection 
being received.  See 38 C.F.R. § 3.400(b)(2) (2007).  The 
Board is bound by the laws and regulations applicable to the 
benefit sought.  See 38 C.F.R. § 19.5 (2007).   


ORDER

Entitlement to an effective date of October 20, 1983, for 
service connection for tinnitus is granted.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs