Citation Nr: 1205723 Decision Date: 02/15/12 Archive Date: 02/23/12 DOCKET NO. 10-25 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date prior to June 17, 2009, for the grant of service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1955 to December 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT On June 17, 2009, the Veteran informally submitted a claim to the San Diego RO for service connection for tinnitus. In October 2009, the Veteran's claim for service connection for tinnitus was granted, effective June 17, 2009, the day the claim was received by the RO. CONCLUSION OF LAW The criteria for an effective date earlier than June 17, 2009 for award of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.105, 3.155, 3.157, 3.400(o)(2) (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks an effective date earlier than June 17, 2009 for the award of service connection for tinnitus. He alleges that the effective date for his service-connected tinnitus should be June 18, 2008, the date the Veteran submitted a formal claim for hearing loss. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (emphasis added). When an application for disability compensation is received within one year of the date of the veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C.A. § 5110(b)(1). An increase in disability compensation may be granted from the earliest date on which it is factually ascertainable that an increase in disability occurred if the claim for an increase is received within one year from that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When the increase in disability occurred prior to one year from the date of filing, an effective date of award cannot be awarded prior to the date of the application. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). The term "application," while not defined in the statute, is broadly construed by regulation to include "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). Where a formal claim has already been allowed, certain submissions will be accepted as an informal claim such as a report of examination or hospitalization by the VA. 38 C.F.R. §§ 3.157(b)(1)-(b)(3). Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identify the benefit being sought. 38 C.F.R. § 3.155(a). See Brannon v. West, 12 Vet. App. 32, 34 (1998). In determining the effective date of award, the Board is required to look to all communications in the file which may be construed as a formal or an informal claim and, then, to all other evidence in the record to determine the "earliest date of which," within the year prior to the claim, the increase in disability was ascertainable. Quarles v. Derwinski, 3. Vet. App. 129, 134 (1992). Appellate review of a rating decision is initiated by a notice of disagreement and completed substantive appeal after a statement of the case has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The issue of CUE (which must be specific) has not been raised in this claim. A claim is considered abandoned when a claimant does not supply information requested by VA within one year of the request. 38 C.F.R. § 3.158. Failure to inform VA of a current address or to report for a VA examination may constitute an abandoned claim. Hyson v. Brown, 5 Vet. App. 262 (1993). Where there is an abandoned claim, the veteran must file a new claim, and the effective date will not be earlier than the date of receipt of the new claim. 38 C.F.R. § 3.158. In Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that when a rating decision is final, only a request for a revision premised on clear and unmistakable error (CUE) could result in the assignment of earlier effective date. A freestanding claim for an earlier effective date, once the appeal becomes final, attempts to vitiate the rule of finality. Review of the record reflects that on June 18, 2008, the Veteran submitted a formal claim for "bilateral hearing loss." Explicitly, this submission did not reveal the Veteran's intent to seek service connection for tinnitus. At the time, the RO did not even know the Veteran had tinnitus. Indeed, while related, the Veteran's claim in June 2008 was limited to service connection for a hearing loss disability. As a result of the Veteran's claim, the RO awarded service connection for hearing loss in a February 2009 rating decision. Only after the RO adjudicated his claim of service connection for bilateral hearing loss and after the Veteran was informed by the VA examiner that he had tinnitus and should file a claim for service connection for tinnitus did the Veteran initiate an informal claim for entitlement to service connection for tinnitus. In fact, while the evidence shows that the Veteran's tinnitus is related to service, he did not submit a claim for benefits during his first post-service year or until June 2009. Therefore, the Board finds that the proper effective date for the grant of service connection for the Veteran's tinnitus is June 17, 2009, the date of receipt of the informal claim. 38 C.F.R. § 3.400(b)(2)(i). The Board has considered the Veteran's argument that the June 2009 submission was his "second filing" and his "first filing was on June 18, 2008." While the Board acknowledges that June 18, 2008 was the date of his claim for entitlement to service connection for bilateral hearing loss, it is critical that the Veteran understand that this claim is different than his claim for entitlement to service connection for tinnitus. Both disabilities pertain to conditions of the ear, however, they are individual, separate, and distinct disabilities and service connection may be awarded for both, neither, or one or the other. Simply stated, the Board is bound by the law. As noted above, the law provides that the earliest possible effective date for the grant of service connection may be the day after separation from service, if a claim for that benefit is filed within the first post-service year. Otherwise, the effective date will be the date the claim is received or the date entitlement arose, whichever is later. See 38 C.F.R. §3.400. The record clearly reflects that the Veteran's claim of entitlement to service connection for tinnitus was received on June 17, 2009. The day the Veteran submitted his claim for entitlement to service connection for bilateral hearing loss is not determinative as to the assignment of the date from when service connection for tinnitus may be granted. While the Board is certainly sympathetic to the Veteran's argument, the Board is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C.A. §§ 503, 7104 (West 2002 & Supp. 2011); see Harvey v. Brown, 6 Vet. App. 416 (1994). The Board can only determine whether the Veteran meets all of the requirements of the benefit being sought and, if he is not entitled to the benefit as specified by the statutes enacted by Congress and VA's implementing regulations, the benefit cannot be awarded regardless of the circumstances. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, while it is unfortunate that the Veteran may have intended to submit a claim of service connection for tinnitus at the same time he submitted a claim for service connection for bilateral hearing loss, many years after discharge from service, the Board has no option but to decide this claim in accordance with the applicable law. In this regard, it is important for the Veteran to understand that while he may have had the intention to submit a claim for both hearing problems together and simultaneously, the record in this case is clear. In essence, the facts of this case are not in dispute and the law is dispositive. Accordingly, the Veteran's claim must be denied for lack of legal merit. See Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); accord Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995). The evidence against the Veteran's claim for an earlier effective date is highly fact-based. Given the facts above, as a matter of law, there can be no earlier effective date than the date the Veteran submitted his informal claim of entitlement to service connection for tinnitus, June 17, 2009. Hence, the Veteran's claim for an earlier effective date must be denied. Duties to notify and Assist The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in June 2009 and March 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs