Citation Nr: 1801661 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-21 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date prior to June 26, 2012 for the grant of service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.L. Ivey, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in January 2017. FINDING OF FACT A claim for entitlement to service connection for tinnitus was received on June 26, 2012, and there is no unadjudicated formal or informal claim of entitlement to service connection for tinnitus prior to this date. CONCLUSION OF LAW The criteria for an effective date earlier than June 26, 2012 for the grant of service connection for tinnitus are not met. 38 U.S.C. §§ 5101(a), 5110 (2012); 38 C.F.R. §§ 3.155 (as in effect prior to March 24, 2015); 38 C.F.R. §§ 3.1(p), 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In general, the effective date of 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 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A claim is a written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the current effective date for the Veteran's tinnitus is prior to that date, the regulations in effect prior to March 24, 2015 will be applied in this case. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim must identify the benefit 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. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). The current effective date of service connection for tinnitus is June 26, 2012, the date the Veteran filed a claim for an increased rating for his hearing loss and service connection for tinnitus. See June 26, 2012 Statement in Support of Claim. The Veteran has acknowledged that he did not explicitly file a claim for service connection for tinnitus prior to June 26, 2012. See January 2017 Board hearing transcript, pp 4-5. He instead asserts that a claim for tinnitus should have been inferred in his original service connection claim for hearing loss, filed in September 2001. See id. Unfortunately, the Veteran's contention is not supported by the documentary evidence of record. The Veteran's September 2001 VA Form 21-526 listed "hearing loss" as the disability for which he sought compensation. No mention of tinnitus or ringing of the ears was made on that application, his March 2002 Notice of Disagreement, his March 2003 VA Form 9, his March 2004 Correspondence, his May 2004 Correspondence, or his September 2004 VA Form 9. An August 2006 Correspondence requests an increase in his disability rating for hearing loss, with no mention of tinnitus or ringing in the ears. In other words, even the most liberal reading of these documents does not indicate an intent to apply for compensation benefits for tinnitus. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015); Rodriguez, supra. In his currently pending claim, the Veteran's representative asserted that the VA examiners did not "pursue" or examine him for tinnitus and the Veteran did not understand how to indicate to the examiners that he had ringing in his ears when he filed his 2001 claim. See December 2014 Appellate Brief. However, the Veteran received VA audiology examinations in September 2005 and April 2006 in connection with the 2001 claim, and specifically denied the presence of tinnitus during both examinations. A May 2006 VA ENT consult note similarly reflects that the Veteran denied the presence of tinnitus. To the extent the Veteran asserts he was not asked about the presence of tinnitus during these examinations, his statement, alone, does not rebut the presumption that these VA examiners properly discharged their duties. Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) and applying the presumption of regularity to VA examinations); see also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). In sum, the evidence does not support a finding that the Veteran submitted any unadjudicated formal claim of service connection for tinnitus prior to June 26, 2012, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. Thus, June 26, 2012 is the earliest possible effective date. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Board acknowledges the Veteran's frustration and belief he implicitly filed a claim for service connection for tinnitus in 2001. While the Board is sympathetic toward the Veteran and grateful for his honorable service to our country, the Board is bound and constrained by law. Therefore, the Board finds that there is simply no basis upon which to justify granting an effective date earlier than June 26, 2012 and the appeal for an earlier effective date for the grant of service connection for tinnitus must be denied. ORDER Entitlement to an effective date prior to June 26, 2012 for the grant of service connection for tinnitus is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs