Citation Nr: 1551315	
Decision Date: 12/08/15    Archive Date: 12/16/15

DOCKET NO.  12-16 594	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to an effective date prior to July 21, 2010 for the grant of service connection for bilateral hearing loss and tinnitus.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty from September 1950 to June 1952.  

This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  In the rating decision, the RO granted service connection for bilateral hearing loss and tinnitus and assigned initial ratings, effective July 21, 2010, the date of the Veteran's claim for service connection.  The Veteran disagreed with the effective date assigned.  The case is currently under the jurisdiction of the Los Angeles, California RO.

In October 2015 the Veteran testified at a Board hearing. 


FINDINGS OF FACT

1.  The Veteran filed a claim for service connection for hearing loss and tinnitus that was received by the RO on July 21, 2010.

2.  There is no evidence that the Veteran sought service connection for bilateral hearing loss or tinnitus prior to his July 2010 claim.  


CONCLUSION OF LAW

The criteria for an effective date earlier than July 21, 2010, for the grant of service connection for bilateral hearing loss and tinnitus have not been met.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.155, 3.159, 3.400 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duty to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).

The appeal arises from a disagreement with the initially assigned effective date after service connection was granted.  Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated.

As to the duty to assist, service treatment records and post-service VA treatment records have been obtained.  The Veteran was provided a VA medical examination in June 2011.  Considering that this examination supported the Veteran's claims for service connection, and considering that the Veteran's claims on appeal are unrelated to the sufficiency or adequacy of that examination, the Board shall not analyze it further.  

For the foregoing reasons, VA's duty to assist has been met.

II.  Earlier Effective Date Claims

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be 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.  

For VA compensation purposes, a "claim" is defined as "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).  An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits."  It must "identify the benefit sought." 38 C.F.R. § 3.155(a).  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).

VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits.  See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

The facts here are not in dispute.  The Veteran filed a claim seeking service connection for hearing loss and tinnitus on July 21, 2010, and he underwent a VA audio examination in June 2011.

In July 2011, the Cleveland RO granted service connection for bilateral hearing loss and tinnitus, assigning an effective date for both claims of July 21, 2010, the date his claim for service connection was received at the RO.

In the Veteran's subsequent notice of disagreement and his substantive appeal, the Veteran argued that the effective date for service connection for bilateral hearing loss and tinnitus should be in 1953, shortly after his separation from service.  

The day following separation from service can serve as the effective date for the grant of service connection, but only if a claim for service connection is received within a year of a claimant's separation from service.  38 C.F.R. § 3.400(b)(2).  Here, there is no evidence that the Veteran filed a claim for service connection for bilateral hearing loss or tinnitus within a year of his active service.  The record shows that he filed a claim for service connection for high blood pressure and nose bleeds in December 1952.  There was no claim or contention related to hearing loss or tinnitus at that time.

The Board does not doubt the sincerity of the Veteran's allegations that his hearing disabilities began during his military service; however, the regulation regarding effective dates states that the effective date assigned is the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400 (emphasis added).  As the Veteran did not file his claim until 2010, more than 55 years after entitlement purportedly arose, the Board is precluded from assigning an effective date earlier than the date of his claim.  

Indeed, there is also no evidence that the Veteran sought service connection for bilateral hearing loss or tinnitus between the date of his separation and the currently assigned effective dates of July 21, 2010.  At his hearing before the undersigned, the Veteran specifically denied having filed such a claim prior to July 21, 2010.

The preponderance of the evidence is against the claims for earlier effective dates; there is no doubt to be resolved; and earlier effective dates for the award of service connection for bilateral hearing loss and tinnitus are not warranted.


ORDER

Entitlement to an effective date prior to July 21, 2010 for the grant of service connection for bilateral hearing loss and tinnitus is denied.



____________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs