Citation Nr: 1503111 Decision Date: 01/22/15 Archive Date: 01/27/15 DOCKET NO. 12-19 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date prior to May 17, 2010, for the award of service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from March 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for tinnitus and assigned a 10 percent evaluation, effective from May 17, 2010. FINDINGS OF FACT 1. The Veteran initially filed service connection for tinnitus on February 2, 2000; that claim was denied in a March 2000 rating decision and again in an August 2001 rating decision; the Veteran was notified of those decisions in March 2000 and August 2001 letters, respectively. 2. The Veteran did not submit any new and material evidence within one year of the August 2001 notification letter or file any correspondence purporting to be a notice of disagreement with either the March 2000 or August 2001 rating decisions within one year of the notification letters. 3. No new service department records have been received that were not previously of record in August 2001. 4. The Veteran's claim to reopen service connection for tinnitus was received on May 17, 2010. CONCLUSION OF LAW An award of service connection for tinnitus earlier than May 17, 2010, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.400 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's earlier effective date claim arises from an appeal of the initial award. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis On appeal, and particularly in his September 2011 notice of disagreement, the Veteran argues that his effective date for the award of service connection should be March 27, 2000, which the Board notes is the date of the notification letter regarding the first rating decision that addressed a claim of service connection for tinnitus. He essentially argues that his award of service connection for tinnitus in the July 2010 rating decision was based "in large part" on his DD Form 214 separation certificate that shows he was awarded the Combat Infantryman Badge. He said that the CIB "coincides with exposure to loud noise during combat. I was previously denied compensation for tinnitus . . . although DD Form 214 was submitted. I would like to make an appeal to receive back compensation for the period of March 27, 2000 - September 17, 2010 (the period of time wherein compensation would have been received if DD Form 214 had been reviewed and the claim awarded)." Historically, the Veteran initially filed his claim of service connection for tinnitus on February 2, 2000. That claim was denied as not well grounded in a March 2000 rating decision, and the Veteran was notified of that decision by a March 27, 2000 letter. By a June 2001 letter, the Veteran was informed that in November 2000, the United States Congress had passed the Veterans Claims Assistance Act of 2000 and that his previously denied tinnitus claim would be reviewed again in light of this new legislation. The agency of original jurisdiction (AOJ) readjudicated the Veteran's tinnitus claim in an August 2001 rating decision, again denying service connection. The Veteran was notified of that decision by an August 7, 2001, letter. No further evidence or correspondence appears in the claims file until receipt of the Veteran's May 17, 2010, Veteran's Application for Compensation and/or Pension, VA Form 21-526, which was dated April 23, 2010. That Form, in Part B where the Veteran would list his claimed disorders, does not indicate tinnitus. However, on a VA Form 21-4138, Statement in Support of Claim, also dated April 23, 2010, the Veteran requested to reopen his claim of service connection for tinnitus; there is no date stamp of receipt on that VA Form 21-4138, but it appears to have been received on the same date as the Veteran's VA Form 21-526. Generally, except as otherwise provided, 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 date entitlement arose, whichever is later. See 38 C.F.R. § 3.400 (2014). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2014). In this case, the Board notes that while a year passed after the initial notification of the denial of tinnitus in the March 2000 rating decision in a March 2000 letter, the AOJ's decision to review that claim in light of the VCAA made that claim not final. However, the AOJ's readjudication of that claim in an August 2001 rating decision subsumed that non-final March 2000 rating decision. The Veteran was properly notified of that August 2001 rating decision in an August 7, 2001 letter. As no new and material evidence was received prior to August 7, 2002, that decision became final. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Likewise, the Veteran did not submit any notice of disagreement with the rating decision within one year of the August 7, 2001, notice. Thus, the August 2001 decision became final. See Id.; see also 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. Also of note, while not specifically averred by the Veteran, there was no new service department records that were not previously considered at the time of the August 2001 rating decision in the claims file. As noted by the Veteran, his separation certificate and other service department records, including his service treatment records, were of record in August 2001 when he was previously denied service connection. (The DD Form 214 was received in 1969.) Therefore, a de novo review of the Veteran's claim was not appropriate. See 38 C.F.R. § 3.156(c) (2014). Given the sequence of events, the Board finds that the 2001 decision is final and therefore the AOJ appropriately assigned May 17, 2010, as the effective date for the award of service connection for tinnitus. This was when his claim to reopen was received by VA. See 38 C.F.R. § 3.400. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An effective date prior to May 17, 2010, for the award of service connection for tinnitus is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs