Citation Nr: 1801281 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-06 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an effective date earlier than December 30, 2012, for the grant of service connection for hearing loss. ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1944 to June 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The first communication from the Veteran to VA of intent to file a claim for service connection for hearing loss was on December 18, 2013; thereafter, the Veteran filed a fully developed claim (FDC) for service connection for hearing loss that was received by VA on December 30, 2013. CONCLUSION OF LAW An effective date earlier than December 30, 2012, is not warranted for the award of service connection for hearing loss. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). With respect to the Veteran's effective date claim, no further notice is necessary under 38 U.S.C. § 5103(a)-compliant notice because the claim arises from the grant of service connection for the underlying disorder. The Board also finds that VA has fulfilled its duty to assist. All relevant, identified, and available evidence has been obtained. II. Legal Criteria, Factual Background, and Analysis Unless specifically provided otherwise, 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 receipt of the application. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. If the application is received within one year from the date of discharge or release, the effective date of an award of disability compensation to a veteran is the day following such date of discharge or release. 38 U.S.C. § 5110(b)(1). A veteran who submits an application for an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. 38 U.S.C. § 5110(b)(2)(A). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the Veteran 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. On December 18, 2013, the Veteran expressed intent to file a claim for service connection for hearing loss. Thereafter, the Veteran submitted a formal claim for service connection for hearing loss, using the Fully Developed Claim (FDC) process and VA Form 21-526EZ, date stamped December 30, 2013. By September 2014 rating decision, the RO awarded service connection for hearing loss with an effective date of December 30, 2012, one year prior to the receipt of the FDC form. The Veteran does not contend that he filed a claim prior to December 2013, but maintains that the effective date for the grant of service connection for hearing loss should be awarded back to his separation from service. He contends he noticed hearing loss since 1946 and began purchasing hearing aids in 1947. He contends that he did not file a claim earlier because he was never informed by VA that he may be entitled to monthly compensation for his hearing loss or that hearing aids were available through VA. See January 2015 statement, July 2015 notice of disagreement, August 2015 statement, December 2015 statement, and January 2016 substantive appeal. While the Board understands and is sympathetic to the Veteran's argument, the Board is bound by statute and VA regulations requiring that VA may not assign an effective date back to separation unless VA received a claim for service connection within one year of his discharge or release. 38 U.S.C. § 5110(b)(1). Here, there is no evidence, nor has the Veteran contended, a claim for service connection for hearing loss was made within one year of his separation or release. The Board considered whether there is evidence a claim was received prior to December 30, 2012. Prior to March 25, 2015, a claim could be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1. An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 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). It follows logically that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised. See Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006). In the situation at hand, there is no evidence of a written intent to apply for benefits prior to December 30, 2012. The Board considered whether using the Veteran's informal filing date would be more beneficial to the Veteran. The Board found the current effective date assigned under the FDC process of December 30, 2012, is more beneficial to the Veteran than using the informal claim filing date of December 18, 2013. The RO correctly applied the rules for determining effective dates, under the FDC process. As the preponderance of the evidence is against the claim for an earlier effective date for the grant of service connection for hearing loss, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107 (b); Gilbert v, Derwinksi, 1 Vet. App. 49, 53-56 (1990). Accordingly, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law. ORDER An effective date earlier than December 30, 2012, for the grant of service connection for hearing loss is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs