Citation Nr: 1304752	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  07-31 064A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to an effective date earlier than May 12, 2005, for the award of service connection for tinnitus. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. Hancock, Counsel

INTRODUCTION

The Veteran served on active duty from August 1944 through July 1946, and from August 1948 through March 1953.  He died in May 2010.  The appellant is the Veteran's surviving spouse.  In December 2012, the RO granted her request to be substituted as the claimant for the purposes of processing this appeal to completion.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.  This decision, in pertinent part, granted service connection for tinnitus and assigned a 10 percent disability rating, effective July 14, 2005.  A September 2007 RO Decision Review Officer (DRO) decision assigned an earlier effective date of May 12, 2005, for the grant of service connection for tinnitus.  The DRO found that in the course of a May 12, 2005, Board video conference hearing the Veteran had made an informal claim for tinnitus.  

In October 2008, the Board issued a decision which denied the claim for an effective date earlier than May 12, 2005, for the award of service connection for tinnitus.  The Veteran appealed the Board's October 2008 decision to the United States Court of Appeals for Veterans Claims (Court).  In a March 2010 Memorandum Decision, the Court set aside and remanded the Board's October 2008 decision with respect to the claim on appeal.  

As above noted, the Veteran died in May 2010.  In September 2010, the appellant submitted a claim seeking service connection for the cause of the Veteran's death.  See VA Form 21-534.  This claim was later granted by the RO in October 2010.  In a November 2010 decision the Board dismissed the Veteran's earlier effective date claim for tinnitus, finding that it had become moot by virtue of the Veteran's death.  The RO notified the appellant by a letter from the RO dated in December 2012, that she had been substituted for her deceased husband pursuant to Public Law 110-389 (see 38 U.S.C.A. § 5121A which states that "if a claimant dies while a claim or appeal for any benefit under a law administered by the Secretary is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purpose of processing the claim to completion."  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  By means of a letter from the Veteran, received by the RO on February 7, 2003, the Veteran filed a claim for, in pertinent part, entitlement to service connection for "loss of hearing in my right ear."

2.  The Veteran's claim for VA benefits for hearing loss in 2003, combined with evidence of tinnitus at a November 1971 VA examination, included a claim of service connection for tinnitus.  

3.  Prior to February 7, 2003, there was no formal claim, informal claim, or written intent to file a claim for service connection for tinnitus.  


CONCLUSION OF LAW

The criteria for an effective date of February 7, 2003, but not earlier, for the award of service connection for tinnitus are met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has duties 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).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

This appeal arises from the Veteran's disagreement with the effective date following the grant of service connection for tinnitus.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  No additional discussion of the duty to notify is therefore required. 

The current claim was pending at the time of the Veteran's death.  Effective October 10, 2008, the law was changed concerning substitution in the case of the death of a claimant.  As noted in the Introduction, the appellant was substituted as the claimant for purposes of processing this appeal to completion.  In August 2010, the Director of Compensation and Pension Service issued a Fast Letter that provided guidance on processing claims involving substitution of parties.  See Fast Letter 10-30.  In addition, VA has published a proposed a new regulation for inclusion in 38 C.F.R. Part 3, 14, and 20 to address the issue even further.  See 76 Fed. Reg. 8666 -8674 (February 15, 2011).  Both the Fast Letter and the proposed regulations provide that if proper notice was sent to the original appellant, in this case the Veteran, further notice need not be sent to the substituted party.  Here, proper notice was sent to the Veteran, the initial claim of service connection was substantiated and additional notice is not required for the appellant. 

VA also has a duty to assist in the development of the claim, which is not abrogated by the granting of service connection.  There is no indication that further action is needed to comply with the duty to assist.  The Veteran's service treatment records, VA examinations and statements are associated with the claims folder.  

Earlier Effective Date

The effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later.  38 U.S.C.A. § 5110 (b)(1); 38 C.F.R.§ 3.400 (b)(2)(i).  If the grant is based on a claim which has been finally denied and subsequently reopened by the submission of new and material evidence, the effective date is the date of receipt of the new claim, or the day entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q), (r).

The terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1(p) (2012).  "Any communication or action indicating an intent to apply for one or more benefits .... may be considered an informal claim.  Such informal claim must identify the benefit sought."  38 C.F.R. § 3.155(a) (2012); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Dunson v. Brown, 4 Vet. App. 327, 329-30 (1993).

To constitute an informal claim for a benefit, a communication or action must indicate an intent on the part of the claimant to apply for the benefit and must identify the benefit sought.  38 C.F.R. § 3.155; Brannon, 12 Vet. App. at 34-35 (indicating that, the mere presence of medical evidence showing a disability does not establish an intent on the part of the veteran to seek service connection for that disability). 

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012).

A review of the record shows that the Veteran submitted an initial claim for service connection for hearing loss in July 1971.  See VA Form 21-526.  He was afforded a VA examination in November 1971 which showed loss of hearing in the right ear.  The examination report also shows that the Veteran complained of ringing in his right ear for a period of nine months.  The examination did not show a diagnosis of tinnitus.  By rating decision dated in December 1971 the RO denied service connection for hearing loss finding that there was no nexus between the Veteran's current right ear hearing loss and service.  The Veteran perfected an appeal of this decision.  In a March 1973 decision, the Board confirmed the denial of service connection for hearing loss; that decision became final.

The Veteran submitted another claim for service connection for hearing loss on February 7, 2003.  In connection with this claim the Veteran testified before the Board at a videoconference hearing on May 12, 2005.  During this hearing the Veteran testified that he began experiencing a ringing of the ears (i.e., tinnitus) before his discharge from military service.  The Veteran was afforded a VA audiological examination in July 2005.  This examiner opined that the Veteran's hearing loss was related to his military service.  The examiner also diagnosed the Veteran with tinnitus and opined that the Veteran's tinnitus was also related to noise exposure during the Veteran's military service.  

By rating decision dated in September 2005, the RO granted service connection for hearing loss and tinnitus and assigned an effective date of February 7, 2003, for the hearing loss (the date of the Veteran's claim for hearing loss) and an effective date of July 14, 2005, for tinnitus (the date of the VA audio examination).  The Veteran disagreed with the effective dates and in a September 2007 DRO decision, the RO assigned an effective date of May 12, 2005, for the tinnitus (the date of the Board videoconference hearing during which the Veteran first complained of tinnitus).

In the March 2010 Memorandum Decision, the Court found that, contrary to the Board's October 2008 finding that the first indication in the record of tinnitus came about in the course of his May 12, 2005, Board hearing, a November 1971 VA examination report - discussed above - reflected the Veteran's earlier provided history of ringing in his right ear.  

Given that the Veteran was not a medical expert trained to differentiate between medical diagnoses of hearing loss and tinnitus, and the Board is to sympathetically read all pro se filings, the Board finds that the Veteran's 2003 claim for service connection for hearing loss, combined with the evidence of tinnitus of record as early as November 1971 (i.e., VA examination report), actually included a claim for benefits for tinnitus.  The Board therefore finds that an effective date of February 7, 2003, but no earlier, is warranted for the grant of service connection for tinnitus. 

The Board notes that Veteran, while again acknowledging that he complained of a history of ringing in his right ear in the course of a November 1971 VA examination, did not appeal the Board's March 1973 decision which denied entitlement to service connection for hearing loss, and thus such determination is final in the absence of clear and unmistakable error (CUE).  38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400-20.1411.  A claim for service connection for tinnitus was not addressed by the RO in 1971, nor the Board in 1973.  The appellant has not raised a claim specifically alleging CUE in the 1973 Board decision, and that issue is not before the Board.

Where there has been a prior final denial, the award of VA benefits may not be effective earlier than the date the VA received the particular application for which the benefits were granted.  See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); Washington v. Gober, 10 Vet. App. 391 (1997); Flash v. Brown, 8 Vet. App. 332 (1995).  Thus, the effective date for service connection for tinnitus may be no earlier than the date the application to reopen the claim for right ear hearing loss was received by the VA, on February 7, 2003.  


ORDER

Entitlement to an effective date of February 7, 2003, but no earlier, for the grant of service connection for tinnitus is granted, subject to the law and regulations governing the payment of monetary benefits.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs