Citation Nr: 1416689	
Decision Date: 04/15/14    Archive Date: 04/24/14

DOCKET NO.  11-29 319	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an effective date earlier than July 23, 2004 for the award of service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Ronald C. Sykstus, Attorney at Law.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1967 to April 1974 and from June 1976 to June 1980.  

This appeal comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for a bilateral hearing loss disability and tinnitus, effective July 23, 2004.  As will be further discussed, infra, the Board construes the October 2006 notice of disagreement as to the initial ratings for both the hearing loss disability and tinnitus to also be a notice of disagreement as to the effective date for tinnitus.  See 38 C.F.R. §§ 20.201, 20.302 (2013).  The Board notes that the RO has construed this as a notice of disagreement as to the effective date for the hearing loss disability, but not tinnitus.  

The Veteran presented testimony via videoconference before the undersigned Veterans Law Judge (VLJ) in September 2013.  A transcript of that hearing is associated with the claims file.

A review of the Virtual VA paperless claims processing system reveals documents that are duplicative of the evidence in the paper file.  There are no uploaded documents in the Veterans Benefits Management System (VBMS) at this time. 


FINDING OF FACT

In 2004, the Veteran filed an informal claim for service connection for tinnitus.  At the time of the 2004 claim, there were no prior claims for tinnitus pending.




CONCLUSION OF LAW

The criteria for an effective date earlier than July 23, 2004, for the grant of entitlement to service connection for tinnitus, have not been met.  38 U.S.C.A. § 5110 (West 2002).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 as amended (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

As to the earlier effective date claim, the claim arises from the Veteran's disagreement with the effective date assigned in connection with the award of service connection for tinnitus effective July 23, 2004.  Where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003).  The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002).  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).

Moreover, in a hearing before the undersigned, the presiding VLJ clarified the issue on appeal and focused on the elements necessary to substantiate the claim for an earlier effective date and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that these actions by the undersigned supplement VA's compliance with the VCAA and serve to satisfy the obligations imposed by 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

Finally, VA obtained the Veteran's service treatment records and provided the Veteran with an examination in June 2006 in connection with his claim filed in 2004.  Thus, the Board finds that VA has complied with the duty to assist with regard to the earlier effective date claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).

Law and Analysis

The statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 (West 2002).  Except as otherwise provided, the effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will 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 service connection will be the day following the date of separation from service if the veteran filed a claim within one year after service; otherwise, the effective date will be the date of receipt of his claim.  38 U.S.C.A. § 5110(a), (b)(1).

A "claim" is defined as "a formal or informal written communication requesting a determination of entitlement or evidencing belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p) (2013).  An informal claim is "[a]ny communication or action, indicating an intention to apply for one or more benefits.... Such informal claim must identify the benefit sought."  38 C.F.R. § 3.155(a) (2013).   

Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing."  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also Rodriguez v. West, 189 F.3d 1351, 1354 (Fed.Cir.1999) (noting that even an informal claim must be in writing).  VA is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 34 (1998).

The Board must review all communications in the record that may be interpreted as formal or informal claims and consider whether such communications, in the context of the entire record, reasonably raise a claim for benefits.  See Brannon, 12 Vet. App. at 35.  Moreover, in identifying the benefit sought, the Court has stated that although the "RO has no duty to read the mind of the claimant, the RO should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing the claim."  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Thus, the RO must consider claims that may be "reasonably encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or the Secretary obtains in support of the claim."  Id.

The Board notes at the outset that the Veteran timely appealed the effective date awarded in the June 2006 RO rating decision by way of his October 2006 notice of disagreement.  The notice of disagreement reads, in pertinent part, "I also disagree with the back time pay the VA [gave] me.  I first [sic] filed a claim on my hearing back in 1980."  Reading this statement in context of the rest of the notice of disagreement in the most liberal manner, the Board finds that this statement, when taken in context, encompasses a disagreement with the effective date for tinnitus.  See Anderson v. Principi, 18 Vet. App. 371, 375 (2004) (an appellant's question as to "why [the claim] wasn't allowed back in 1985" should be liberally interpreted as an expression of disagreement with the effective date assigned, and held that either of the documents containing this question should be construed as an NOD).  However, despite the Board's finding that the Veteran timely appealed his claim for an earlier effective date for tinnitus, the Board still finds that there is no evidence of a claim for tinnitus prior to July 23, 2004.  

The Board has given careful consideration to the evidence in the case file to include the arguments advanced on behalf on the Veteran.  The Veteran and his representative argue that he should be entitled to an effective date of June 25, 1980, which is when he claims to have first filed a claim for tinnitus post service (immediately after separation from his second period of active service).  

The Veteran essentially argues through his representative that he was referring to his tinnitus disability when he initially filed his claim in 1976 after his first period of active duty for "nerve deafness left ear."  The Board notes that the RO adjudicated this claim and his other claim for a hearing loss disability in April 1976.  However, the Veteran re-enlisted for his second period of active service.  The next communication from the Veteran was in June 1980, after his second period of active service, indicating, "I wish to reopen my claim for service-connected disability.  I was released from active duty . . . [m]y service records reflect my hearing loss."  The Board notes that there is no mention of tinnitus or ringing of the ears in the June 1980 communication.  He specifically references hearing loss but there was no mention of tinnitus or ringing of the ears as to lend an inference that this claim for hearing loss was also a claim for tinnitus.  In 1976 and 1980, the Veteran identified a problem with hearing loss and/or a nerve problem responsible for loss of hearing.  He did not reasonably indicate that he was claiming ringing in his ears, which is tinnitus.  The RO then properly developed his claim for service connection for hearing loss and it was not until he reported additional symptomatology that the RO construed such as a claim for tinnitus in 2004.  Thus, the Board finds that "nerve deafness left ear" does not otherwise satisfy the requirements of an informal claim for service connection for tinnitus as it failed to reasonably indicate intent to apply for benefits for tinnitus.  See Brokowski, 23 Vet. App. at 88 (stating that the "'sympathetic reading' requirement does not obligate the Board to conduct an exercise in prognostication, but only that it consider all claims reasonably raised by the evidence") (emphasis in original).

The next communication from the Veteran was in July 2004, when he wrote, "I'm requesting a service connected evaluation for hearing loss (both)[.]  This condition has developed as a result of my military service in the U.S. Army [from] 1967 [to] 1974."  The RO construed this as a claim for service connection for a hearing loss disability.  Following a statement submitted in October 2004, where the Veteran discussed additional symptomatology (e.g., dizziness, loss of balance), the RO began development of the claims for service connection for hearing loss disability and tinnitus.  He was then afforded a VA examination in June 2006, which was the first documented post-service diagnosis of tinnitus.  

The Board acknowledges the Veteran's argument that he was diagnosed with tinnitus in service (first period) in 1971, as documented by his service treatment records.  However, "[t]he 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."  Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006) (citing Brannon, 12 Vet. App. at 35).  Furthermore, the Board must apply the statutory and regulatory guidelines for determining the effective date of an award of disability compensation as set forth in 38 U.S.C.A. § 5110 which essentially provides that the effective date of an award of compensation will 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) (emphasis added).  Thus, what is material in this case is when the records show that the claim for service connection for tinnitus was filed, despite the fact that the Veteran may have had tinnitus since his first period of active service.  

VA has a duty to determine the breadth of a claim from intent and the evidence of record.  The claimant's intent in filing a claim is paramount to construing its breadth especially because the claimant knows what symptoms are causing the disability.  Here, based upon the evidence, the claim and the pleadings, we find that there was no intent to file a claim for tinnitus.  Neither the 1976 nor 1980 claims reference tinnitus or ringing in the ears.  The service records from the second period of service do not reference tinnitus or ringing in the ears.  These documents establish that there was no intent to file a claim tinnitus.  Clearly, there was a notation of tinnitus in November 1971.  However, there were no further complaints of tinnitus during service, and in December 1975, he denied a history of ear trouble.  We find that a single notation of tinnitus, years prior to separation from either period of service, does not establish an intent to file a claim for tinnitus.   Even the most liberal reading of the record does not establish an intent to file a claim for service connection for tinnitus.  The reliance upon Clemons is misplaced.

In sum, based on a review of the evidence, the Board finds that there was no claim for tinnitus that was filed prior to 2004.  The 1980 communication is construed as a claim to reopen service connection for just a hearing loss disability as there was no reference or inference of tinnitus, or its identifiable symptomatology, which is ringing of the ears.  

Lastly, the Board notes that entitlement to service connection for tinnitus was not based on a liberalizing VA law or issue, see 38 U.S.C.A. § 5110(g), 38 C.F.R. § 3.114, and an effective date is therefore not warranted on this basis, or on the basis of any other exception.

The Board is sympathetic to the Veteran's arguments, but the Board has no authority to grant claims on an equitable basis and must follow the applicable provisions of the law.  See 38 U.S.C.A. § 7104 ; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).

Therefore, under the laws and regulations pertaining to effective dates, the July 23, 2004 date of the application to reopen service connection is the appropriate effective date for the grant of entitlement to service connection for tinnitus in this case, and an earlier effective date is not warranted.


ORDER

An effective date prior to July 23, 2004 for the award of service connection for tinnitus is denied.


____________________________________________
H. N. SCHWARTZ 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs