Citation Nr: 1340745 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-13 627 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUES 1. Entitlement to an effective date earlier than March 16, 2009 for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than March 16, 2009 for the grant of service connection for bilateral hearing loss. 3. Entitlement to an effective date earlier than March 16, 2009 for the grant of service connection for tinnitus. REPRESENTATION Appellant (the Veteran) is represented by: Iowa Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from February 1969 to September 1970. The Veteran was awarded the Bronze Star Medal with "V" device and Oak Leaf Cluster. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the RO in Des Moines, Iowa. In November 2011, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2013). A transcript of the hearing is associated with the claims file. In reviewing this case the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. There is no dispute of fact as to any question pertinent to resolution of this appeal. 2. The earliest date of a pending claim for service connection for PTSD, hearing loss, or tinnitus is March 16, 2009. 3. As between the date entitlement to service connection arose and the earliest date of claim, the date of claim is the later. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 16, 2009 for the grant of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.156(c), 3.155, 3.159, 3.400 (2013). 2. The criteria for an effective date earlier than March 16, 2009 for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.156(c), 3.155, 3.159, 3.400 (2013). 3. The criteria for an effective date earlier than March 16, 2009 for the grant of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.156(c), 3.155, 3.159, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking an earlier effective date for the grant of service connection for PTSD, hearing loss, and tinnitus. His essential contention, as gleaned from his hearing testimony, is that, although these conditions were not diagnosed and treated for many years after service separation, he experienced actual impairment in his social and occupational functioning due to each disability since service. After a review of all of the evidence, the Board finds that there is no dispute as to the facts essential to resolution of this appeal. Specifically, the Veteran does not contend that he filed a claim of entitlement to service connection for PTSD, hearing loss, or tinnitus until March 16, 2009. He testified at his hearing that he did not know he could file for disability when he left service or at any time prior to the filing of the current claim in March 2009. The laws and regulations governing effective dates establish that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, 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). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA 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) (West 2002); 38 C.F.R. § 3.151(a) (2013). A claim 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) (2013). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2013). While the Board understands the Veteran's concern, on these undisputed facts, the Board finds no legal basis for the assignment of an effective date for the award of service connection prior to March 16, 2009. The claim form (VA Form 21-526) filed on that date is the earliest correspondence from the Veteran in the claims file regarding service connection for PTSD, tinnitus, or hearing loss. There is nothing in the record that could be interpreted as an earlier claim, formal or informal, for service connection for any of the claimed disorders prior to March 16, 2009. The Board acknowledges that the Veteran's disabilities did not begin on the date the claim was filed (this is clear); however, as set out above, a claim is a necessary element of the establishment of an effective date for service connection. The date of onset of the disability is a separate component. The Board finds that VA treatment records and/or examination reports, to the extent that they establish an earlier onset of the disabilities, cannot serve as a claim (formal or informal) for service connection. The United States Court of Appeals for Veterans Claims (Veterans Court) in Criswell v. Nicholson, 20 Vet. App. 501 (2006) in pertinent part held that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See also Brannon v. West, 12 Vet. App. 32, 35 (1998); 38 C.F.R. § 3.155(a). It is well settled that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See Criswell, citing MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed.Cir.2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); also citing Rodriguez v. West, 189 F.3d 1351, 1353 (Fed.Cir.1999) (noting that even an informal claim for benefits must be in writing); also citing Brannon, 12 Vet. App. at 35. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of VA examination will be accepted as an informal claim for increased benefits or an informal claim to reopen. The date of examination will be accepted as the date of receipt of the claim. See 38 C.F.R. § 3.157(b). In this case, there was no prior claim for compensation that was disallowed for the reason that any of the claimed disabilities was not compensable in degree. In summation of the Board's findings, prior to March 16, 2009, there was no pending claim for service connection for PTSD (or any psychiatric disorder), hearing loss, or tinnitus. VA treatment records do not serve as a formal or informal claim for service connection. As such, an effective date prior to the date of receipt of the Veteran's claim for service connection is legally precluded. The controlling statute and regulation provide that the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Here, there is no dispute. Therefore, the date of claim, March 16, 2009, is the later of the two dates, and is the appropriate effective date. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The Board emphasizes that the denial of these claims does not in any way diminish the Veteran's distinguished service. However, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2013). As there is no legal basis for assignment of any earlier effective date than March 16, 2009, the Board finds that an earlier effective date for the grant of service connection for PTSD, hearing loss, and tinnitus is not warranted. Where, as here, the law, and not the evidence, is dispositive, the appeal must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). As discussed below, the facts are not in dispute; instead, resolution of these claims is wholly dependent on interpretation of the applicable laws and regulations pertaining to effective dates. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004. ORDER An effective date earlier than March 16, 2009 for grant of service connection for PTSD is denied. An effective date earlier than March 16, 2009 for grant of service connection for bilateral hearing loss is denied. An effective date earlier than March 16, 2009 for grant of service connection for tinnitus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs