Citation Nr: 1553793	
Decision Date: 12/28/15    Archive Date: 01/07/16

DOCKET NO.  12-24 802	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to an effective date earlier than December 8, 2009, for a grant of service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from November 1984 to December 1987. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  In July 2015, the Veteran testified at a personal hearing before the undersigned at the RO and a transcript of that hearing has been associated with the claims file.


FINDING OF FACT

The Veteran did not submit a claim for service connection for tinnitus until December 8, 2009, which is more than one year after his December 1987 separation from active duty.


CONCLUSION OF LAW

The criteria for the assignment of an effective date prior to December 8, 2009, for the award of service-connection for tinnitus have not been met.  38 U.S.C.A. §§ 5103, 5103A, 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.159, 3.400 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See 38 U.S.C. § 5103(a).  

In this regard, the Veteran is challenging the initial effective date assigned following the grant of service connection for tinnitus.  In Dingess, supra, the Court also held that in cases where a claim has been granted and an initial effective date has been assigned, the claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id, at 490-91; See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence, including the Veteran's service treatment records and all of his identified post-service treatment records.  See 38 U.S.C.A. § 5103A(b).

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's electronic VA claim's file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim

The Veteran's earlier effective date claim arises from his disagreement with the effective date assigned following the grant of service connection for tinnitus.  Specifically, the Veteran at his hearing before the undersigned testified, in substance, that an earlier effective date is warranted for the grant of service connection for tinnitus dating back to the date VA granted him service connection for left ear hearing loss (i.e., December 1987).  The Veteran averred that his tinnitus was caused by the same incident in which he damaged the hearing in his left ear; he both complained of and was diagnosed with tinnitus while on active duty as well as at his first post-service VA audiological examination in March 1989; and when he filed his initial claim of service connection for hearing loss in October 1988 he thought that it included the problem he was having with ringing in his ears/tinnitus.

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.  The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). 

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  The term "claim" or "application" means 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).  Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  In this regard, 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 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); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing).  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 veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155. 

With the above criteria in mind, the record shows that on December 8, 2009, more than one year after the Veteran's December 1987 separation from active duty, VA received a writing from the Veteran in which he specifically claimed entitlement to service connection for tinnitus.  In a subsequent August 2010 rating decision, the RO granted the Veteran service connection for tinnitus effective from December 8, 2009.  Therefore, because the effective date of an award of disability compensation for claims filed more than one year after an appellant separates from service is the date of receipt of the claim or the date entitlement arose, whichever is later, the Board finds that assigned effective date of December 8, 2009 is proper, and that the assignment of an earlier effective date is not warranted.  

In reaching this conclusion, the Board has considered the Veteran and his representative's testimony regarding the Veteran's belief that, when he was filing his claim of service connection for hearing loss in 1988, he thought that it included the ringing he had in his ears, and that the Veteran's service treatment records and March 1989 VA audiological examination report should have acted as claims of entitlement to service connection for tinnitus.  The Board also acknowledges that the service treatment records and the March 1989 VA examination do document the Veteran's complaints of ringing in his ears/tinnitus.  
 
However, the pre-December 8, 2009, medical records cannot act as an informal claim because none of them show intent on the part of the Veteran to seek the benefit at issue.  See MacPhee, supra.  The VA application received in October 1988 does not reference tinnitus, and as noted, although the 1989 VA examination report notes tinnitus, it does not mention an intent to seek service connection.  Moreover, throughout the pendency of the Veteran's appeal for an increased rating for left ear hearing loss and service connection for right ear hearing loss, no reference to a claim for service connection for tinnitus was made.  The Board's December 1990 decision did not mention such a reference either.  Rather, the record establishes that the Veteran's intent to seek service connection for tinnitus was initially reflected on the informal claim received on December 8, 2009.  See Rodriguez, supra.  

The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department.  38 U.S.C.A. § 7104(c).  The Veteran's claim seeking entitlement to service connection for tinnitus was received on December 8, 2009 and no earlier.  Accordingly, the appeal is denied.  See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.


	(CONTINUED ON NEXT PAGE)


ORDER


Entitlement to an effective date prior December 8, 2009, for the grant of service connection for tinnitus is denied.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs