Citation Nr: 1603022 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 12-14 363A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an effective date prior to May 10, 2010, for the award of service connection for tinnitus. 2. Entitlement to an effective date prior to May 10, 2010, for the award of service connection for left ankle sprain with calcaneal spur. 3. Entitlement to an effective date prior to May 10, 2010, for the award of service connection for degenerative disc disease, lumbar spine, L4-5, with central and left foraminal stenosis. 4. Entitlement to an effective date prior to May 10, 2010, for the award of service connection for intervertebral disc syndrome with involvement of the left tibial nerve. 5. Entitlement to an effective date prior to May 10, 2010, for the award of service connection for bilateral hearing loss. 6. Entitlement to an effective date prior to May 10, 2010, for the award of service connection for penile warts. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from March 2005 to March 2009. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran provided testimony at a videoconference hearing before the undersigned in October 2015. A transcript of the hearing is of record. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. FINDING OF FACT On May 10, 2010, more than one year following his discharge from service, the RO received the Veteran's original claim seeking service connection for tinnitus, a left ankle disability, a low back disability, penile warts, tinnitus and hearing loss. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to May 10, 2010, for the award of service connection for tinnitus have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 2. The criteria for an effective date prior to May 10, 2010, for the award of service connection for left ankle sprain with calcaneal spur have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 3. The criteria for an effective date prior to May 10, 2010, for the award of service connection for degenerative disc disease, lumbar spine, L4-5, with central and left foraminal stenosis have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 4. The criteria for an effective date prior to May 10, 2010, for the award of service connection for intervertebral disc syndrome with involvement of the left tibial nerve have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 5. The criteria for an effective date prior to May 10, 2010, for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 6. The criteria for an effective date prior to May 10, 2010, for the award of service connection for penile warts have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. As explained below, the determinative factor in this case is when the Veteran's claims were received. Any notice sent or evidence received after the receipt of the claim would not establish the Veteran's entitlement to an earlier effective date for service connection. Therefore, no further development is required before the Board decides this appeal. General Legal Criteria: Earlier Effective Date In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2014); 38 C.F.R. § 3.151(a) (2015). A "claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits 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. 38 C.F.R. § 3.155(a) (2015). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Factual Background and Analysis The Veteran is seeking an effective date prior to May 10, 2010, for the award of service connection for his tinnitus; left ankle sprain with calcaneal spur; degenerative disc disease, lumbar spine, L4-5, with central and left foraminal stenosis; intervertebral disc syndrome with involvement of the left tibial nerve; bilateral hearing loss; and penile warts. He recognizes that he did not file a claim within one year of his separation from service, but he contends that he filed his claim with his representative on October 9, 2009, which he contends should be the effective date of the award for service connection. Following its review of the record, the Board finds that May 10, 2010, is the correct effective date for the award of service connection for the Veteran's disabilities, because that is the date that VA received his initial claim for service connection. There is no indication between the Veteran's date of separation from active duty service on March 14, 2009, and the date of receipt of his VA Form 21-526 on May 10, 2010, that he intended to file a claim for service connection. While he may have met with his representative on October 9, 2009, and provided the representative with the requisite documentation to file for service connection, there is no indication in the record before the Board that VA received any claim for service connection prior to May 10, 2010. The Board is sympathetic to the Veteran's claims and understands that he relied upon the representative to file his claims shortly after the meeting. Unfortunately, however, there is no evidence of receipt of the claims by VA at any time prior to May 10, 2010. The Board also recognizes the Veteran's representative's explanation at the time of the Board hearing, which indicated the normal practice of the representative to put the claims of veterans in the mail system of the VA Medical Center in which the RO shares office space, such that it should be presumed that the representative put the claims into this mail system at the time of the October 9, 2009 meeting. However, there remains no evidence of receipt of the Veteran's claim by the RO at any time prior to May 10, 2010. As such, May 10, 2010, is the appropriate effective date for the award of service connection. In reaching this decision, the Board has considered the Veteran's written statements and hearing testimony. Despite his contentions, however, it is clear that he did not file a formal or informal claim for service connection with the RO prior to May 10, 2010. The Board has also considered the doctrine of reasonable doubt, but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. ORDER An effective date earlier than May 10, 2010, for the award of service connection for tinnitus is denied. An effective date earlier than May 10, 2010, for the award of service connection for left ankle sprain with calcaneal spur is denied. An effective date earlier than May 10, 2010, for the award of service connection for degenerative disc disease, lumbar spine, L4-5, with central and left foraminal stenosis is denied. An effective date earlier than May 10, 2010, for the award of service connection for intervertebral disc syndrome with involvement of the left tibial nerve is denied. An effective date earlier than May 10, 2010, for the award of service connection for bilateral hearing loss is denied. An effective date earlier than May 10, 2010, for the award of service connection for penile warts is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs