Citation Nr: 1330178 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-09 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an effective date prior to December 5, 2008, for the grant of service connection for left ear hearing loss. 2. Entitlement to an effective date prior to December 5, 2008, for the grant of service connection for tinnitus. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for left ear hearing loss and tinnitus, effective December 5, 2008. The Veteran appeals the effective date of the award. The Veteran's claims file is now in the jurisdiction of the Los Angeles, California RO. FINDINGS OF FACT 1. On December 5, 2008, the Los Angeles RO received the Veteran's claims of service connection for hearing loss and for tinnitus; no earlier claim on the matters has been received. 2. In an April 2009 rating decision, the San Diego RO granted service connection for left ear hearing loss and for tinnitus, both effective December 5, 2008. CONCLUSIONS OF LAW 1. An effective date prior to December 5, 2008 for the grant of service connection for left ear hearing loss is not warranted. 38 U.S.C.A. §§ 5107, 5110(a)(West 2002); 38 C.F.R. §§ 3.102, 3.400 (2013). 2. An effective date prior to December 5, 2008 for the grant of service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the Veteran with pre-adjudicatory, content-complying VCAA notice on the underlying claim of service connection for hearing loss and tinnitus by letter, dated in January 2009. In that letter, the RO also notified the Veteran of the provisions for the effective date of a claim. In any case, where, as here, service connection for left ear hearing loss and tinnitus has been granted and disability ratings and an effective date have been assigned, the claims have been more than substantiated, they have been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once claims for service connection for hearing loss and tinnitus have been substantiated, the filing of a notice of disagreement with the RO's decision does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claims for an earlier effective date for the grant of service connection for left ear hearing loss and tinnitus. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was provided an opportunity to appear at a hearing, but he declined a hearing. Notably, in a claim seeking an earlier effective date for an award the determination is generally based on the evidence already of record (and when it was received), and no further development is necessary. There is no indication of the existence of additional evidence that would serve to substantiate these claims. Hence, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Facts and Analysis The Veteran contends that the effective date of the grant of service connection for left ear hearing loss and for tinnitus should be prior to December 5, 2008. He asserted in a May 2009 statement that on November 19, 2007, he had submitted VA Form 21-4138, identifying hearing loss and tinnitus as issues for which he was raising a claim. He asserted in a March 2010 statement that he had documentation of an earlier effective date, which he indicated would be forthcoming (no additional evidence was thereafter received to substantiate his claims). The law provides that the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). The Veteran was separated from active duty in July 1969. The claims file shows that his initial VA compensation claim (as to any disability) was received by the RO in September 2007, via VA's online application program (VONAPP); hearing loss and tinnitus were not noted in that claim. The Veteran's claim seeking compensation for hearing loss and tinnitus was received by the RO on December 5, 2008. The record contains no evidence, received between the date of the Veteran's discharge from service in July 1969 and the RO's receipt of his claim on December 5, 2008, expressing the Veteran's intent to file a claim for disability benefits (compensation) for hearing loss or tinnitus,. 38 U.S.C.A. § 5101; 38 C.F.R. §§ 3.151, 3.155; Crawford v. Brown, 5 Vet. App. 33 (1993). Following receipt of his claims for service connection for hearing loss and tinnitus, an April 2009 rating decision granted the Veteran service connection for left ear hearing loss and for tinnitus, effective December 5, 2008. The file reflects that the earliest statement in which the Veteran indicated his intent to apply for service connection for left ear hearing loss and tinnitus was the statement received by the RO on December 5, 2008. Thereafter, a VA examination in January 2009 showed that the Veteran had diagnoses of left ear hearing loss and tinnitus, related to military acoustic trauma, which substantiated the claims. The Veteran has alleged that a statement he had submitted on November 19, 2007 represents his initial request for service connection for the hearing loss and tinnitus, and that he has documentation to support his claim. The record before the Board includes no evidence that such statement was received. Notably, he has not followed up on his March 2010 statement that he has documentation he filed such claim and would submit it. The Veteran's December 5, 2008 statement specifically requested that claims be opened for hearing loss and tinnitus and made no reference to having previously filed claims for same. Thus, as noted the operative date in this case for purposes of assigning an effective date for an award of service connection is the date of VA receipt of the claims, which comes after the date entitlement arose. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). For the above-stated reasons, the RO assigned the correct effective date for the award of service connection for left ear hearing loss and for tinnitus, and an effective date earlier than December 5, 2008 is not warranted. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER An effective date prior to December 5, 2008, for the grant of service connection for left ear hearing loss, is denied. An effective date prior to December 5, 2008, for the grant of service connection for tinnitus, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs