Citation Nr: 18149085 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-45 079 DATE: November 8, 2018 ORDER The claim of entitlement to an effective date for the award of service connection for bilateral hearing loss earlier than September 28, 2015, is denied. The claim of entitlement to an effective date for the award of service connection for tinnitus earlier than September 28, 2015, is denied. FINDINGS OF FACT 1. A February 2016 rating decision granting service connection for both hearing loss and tinnitus assigned each award an effective date of September 28, 2015, the date of filing of the application for service connection for those disabilities. 2. The claims file includes no statement or other communication from the Veteran, or other document, received by the Department of Veterans Affairs (VA) prior to September 28, 2015, that constitutes a claim for service connection for bilateral hearing loss. 3. The claims file includes no statement or other communication from the Veteran, or other document, received by VA prior to September 28, 2015, that constitutes a claim for service connection for tinnitus. CONCLUSIONS OF LAW 1. The claim for an effective date earlier than September 28, 2015, for the award of service connection for bilateral hearing loss is without legal merit. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 2. The claim for an effective date earlier than September 28, 2015, for the award of service connection for tinnitus is without legal merit. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to October 1976. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2016 decision in which the VA Regional Office (RO) in St. Paul, Minnesota, inter alia, granted service connection for bilateral hearing loss and tinnitus, each effective September 28, 2015. The Veteran filed a notice of disagreement (NOD) as to the effective dates assigned in March 2016. The RO issued a statement of the case (SOC) in August 2016 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in September 2016. The Veteran asserts that and effective date earlier than September 28, 2015, for the award of service connection for bilateral hearing loss and tinnitus is warranted. Generally, the effective date for an award based on, inter alia, an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). If, however, a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopen) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400(q). A specific claim in the form prescribed by VA must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). 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 are effective for claims and appeals filed on or after March 24, 2015. 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.” See 38 C.F.R. § 3.1(p) (2015). Any communication or action that demonstrates intent to apply for an identified benefit could be considered an informal claim. 38 C.F.R. § 3.155(a). Such an informal claim must identify the benefit sought. Id. Notably, 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. It logically follows that where there can be found no intent to apply for VA benefits, a claim of entitlement to such benefits has not been reasonably raised. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006). See also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require that a claimant have intent to file a claim for VA benefits). The basic facts of this case are not at issue. A claim for service connection for bilateral hearing loss and tinnitus was received on September 28, 2015. In the rating decision on appeal granting service connection for both hearing loss and tinnitus, the RO assigned an effective date of September 28, 2015, the date of filing of the application for service connection for those disabilities. The Veteran asserts that he is entitled to an effective date in 2010, when he filed a VA Form 10-10EZ, Application for Health Benefits. See March 2016 NOD. However, the submission of VA Form 10-10EZ cannot reasonably be construed as a claim for service connection. To that end, the form is solely an application for health benefits, not service connection. Further, the form does not even identify bilateral hearing loss or tinnitus as disabilities which the Veteran has, let alone for which he sought compensation. Rather, the form merely indicates a desire, on the part of the Veteran, to receive health benefits from VA, not any compensation—as is also reflected by the name of the form submitted. The Board notes that health care is a completely distinct benefit from compensation. In sum, the Veteran’s application for health benefits in 2010, submitted via Form 10-10EZ, cannot be construed as a claim for service connection compensation. See 38 C.F.R. § 3.155(a). Also, there is otherwise no evidence of any pending claim for service connection for bilateral hearing loss or tinnitus prior to September 28, 2015. Indeed, the first submission that can be reasonably construed as seeking service connection compensation for bilateral hearing loss and tinnitus was received on September 28, 2015. See VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, received September 28, 2015. Accordingly, that date is the earliest effective date that can be assigned for the awards of service connection. (Continued on the next page)   The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, no effective date for the awards of service connection for bilateral hearing loss and tinnitus, earlier than September 28, 2015, is assignable, the claims for earlier effective dates must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel