Citation Nr: 18145931 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-44 390 DATE: October 30, 2018 ORDER An effective date prior to March 8, 2012, for the grant of service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Navy from October 1963 to October 1967. 1. The claim giving rise to the grant of service connection for tinnitus was received on March 8, 2012; entitlement arose prior to that date. CONCLUSION OF LAW The criteria for establishing an effective date prior to March 8, 2012, for the award of service connection for tinnitus have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is currently pursuing an effective date prior to March 8, 2012, for the award of service connection for tinnitus. The assignment of effective dates is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. If a claim is received within one year of a veteran’s separation from service, the effective date will be the date of separation from active duty or the date that entitlement arose. Otherwise, the effective date for an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date that entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the effective date of March 8, 2012, corresponds with the date that VA received the claim for benefits. This claim was received more than one year after the Veteran’s separation from service in October 1967. Further, the evidence clearly establishes that entitlement arose prior to the March 2012 claim, including an April 2012 VA examiner’s report that the Veteran’s tinnitus onset during service and the Veteran’s own testimony to this effect. As such, an effective date prior to March 8, 2012, is not warranted, as this corresponds to the date that the Veteran’s claim was received by VA and is the earliest possible assignable effective date for this award. Briefly, the Board will address several contentions raised by the Veteran. In November 2014, he contended that an effective date of 1964 was warranted to reflect the onset of his tinnitus. However, an effective date is not assigned solely upon the date when a condition has its onset. Instead, VA regulations establish that an effective date is based upon the later of two dates: when entitlement arises (in this case, when the condition onset) or when VA receives the claim for benefits. Here, the Veteran’s tinnitus onset before he submitted a claim, such that his effective date properly corresponds with the later of the two dates: March 8, 2012, when the claim was received. Next, the Veteran contends that an effective date of 1976 is warranted because this is when he first submitted a claim for service connection. However, the record does not contain any such claim made in 1976. Although he previously applied for service connection in August 1998, an effective date must correspond with the date of the claim which gives rise to the grant of benefits. As the Veteran’s current benefits were granted upon receipt of the March 2012 claim, this is the proper effective date in this case. Finally, the Veteran argues that there was a clear and unmistakable error (CUE) in a previous April 1999 rating decision granting service connection for tinnitus. The Veteran asserts that “not enough research was done on [his] behalf” to establish the date that his tinnitus onset. The Veteran further contends that he should have been provided an examination at the time of his earlier claim, and that such an examination would have revealed that his tinnitus was related to his active service. By way of review, the earliest evidence of the Veteran’s seeking service connection for tinnitus comes in the form of an August 1998 claim. In September 1998, the Veteran was sent a letter providing the basics of how claims for service connection are established and what his and VA’s respective duties were in obtaining evidence. In February 1999, the Veteran was sent a subsequent letter asking for additional information regarding his claim. The Veteran did not reply to either the August 1998 letter or to the February 1999 letter; the RO subsequently denied the Veteran’s claim in an April 1999 rating decision. For a CUE claim to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997). Further, the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. As shown above, however, the only evidence that the Veteran suffered from tinnitus related to his active service at the time of the earlier April 1999 rating decision came from his claim for service connection itself. The Veteran did not reply to two letters seeking additional information, and the Veteran did not appeal the denial of his service connection claim. Given these facts, the Board can discern no scenario in which the RO’s actions in April 1999 could constitute CUE. The facts before it at that time were sparse, and the Veteran did not respond to attempts to seek additional information. To the extent that the Veteran contends that the failure to order or schedule an examination for his claims constitutes CUE, the Court of Appeals for Veterans Claims has consistently held that the failure to comply with the duty to assist cannot constitute CUE. See, e.g., Baldwin v. West, 13 Vet. App. 1, 5 (1999). The Board understands the Veteran’s contentions and arguments as to why he believes an earlier effective date is warranted. However, in this case, the Board is bound by the applicable law and the application of that law to the facts of his particular case. And here, as the evidence shows that the Veteran filed his claim for service connection for tinnitus on March 8, 2012, and that there was not CUE in the earlier April 1999 rating decision that first denied his claim, there is no legal recourse by which the Veteran’s claim for an earlier effective date could be granted. As such, the preponderance of the evidence is against the Veteran’s claim, and the appeal seeking an effective date prior to March 8, 2012, for the award of service connection for tinnitus must be denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel