Citation Nr: 18152011 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-50 836 DATE: November 20, 2018 ORDER Entitlement to an effective date earlier than September 23, 2015, for the grant of service connection and assignment of an initial 10 percent rating for tinnitus is denied. Entitlement to an effective date earlier than September 23, 2015, for the grant of service connection and assignment of an initial 20 percent rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran indicated an intent to file a claim in December 2010; he did not specify any conditions or disabilities for which he sought benefits at that time. 2. On September 23, 2015, the Veteran filed a VA Form 2123, 2015-526EZ, claiming entitlement to service connection for bilateral hearing loss and tinnitus. 3. The record contains no informal claim, formal claim, or any written intent to file a claim of entitlement to service connection for bilateral hearing loss and tinnitus prior to September 23, 2015. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 23, 2015, for the award of service connection for bilateral hearing loss and the assignment of a 20 percent rating, have not been met. 38 U.S.C. §§ 5103 (a), 5103A, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.1 (p), 3.400 (2018). 2. The criteria for an effective date earlier than September 23, 2015, for the award of service connection for tinnitus and the assignment of a 10 percent rating, have not been met. 38 U.S.C. §§ 5103 (a), 5103A, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.1 (p), 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1998 to July 1998. These matters are on appeal from an April 2016 rating decision. Effective Date The Veteran is seeking an effective date earlier than September 23, 2015, for the grants of service connection and assignment of an initial 20 percent and 10 percent ratings, respectively, for bilateral hearing loss and tinnitus. Specifically, he requests an effective date in December 2010. See, October 2016 substantive appeal. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). 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. § 5110 (b)(1) (2012); 38 C.F.R. § 3.400 (b)(2)(i) (2018). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400 (a) (2018). For presumptive service connection purposes, the effective date is the date entitlement arose, if the claim is received within one year after separation from active duty; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(ii). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his 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 veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). In addition, a communication received from a service organization, an attorney, or an agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. Section 506 of PL 112-154, now codified as 38 U.S.C. § 5110 (b)(2)(A), establishes different rules for the assignment of effective dates that are specific to claims decided under the fully developed claim (FDC) process. Thereunder, the effective date of an award of disability compensation to a veteran who submits an application that sets forth 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). A claim for service connection submitted through the FDC process, by definition, meets the statutory requirement of “an original claim that is fully-developed as of the date of submittal.” 38 U.S.C. § 5110 (b)(2)(B). A review of the record shows that a December 2010 Report of General Information, VA Form 21-0820, states that the Veteran intended to apply for compensation/pension benefits under the FDC Program. His statement was meant to preserve the effective date for entitlement to benefits. He stated that he was in the process of assembling his claim package. However, the Veteran failed to identify the benefit sought or identify the disabilities or conditions for which benefits were sought. In a December 2010 letter, VA informed the Veteran that his claim was incomplete and invited him to submit a completed form. The letter indicated that VA would use the date of his incomplete claim to pay benefits from the earliest possible date if a completed FDC form was completed within one year. A January 2011 Interoffice Memorandum notes that the Veteran filed an informal claim pending at that time with no conditions listed. On September 23, 2015, VA received a formal claim for service connection for bilateral hearing loss and tinnitus. See September 2015 VA Form 21-526EZ. An April 2016 rating decision granted service connection for bilateral hearing loss, rated 20 percent disabling and granted service connection for tinnitus, rated as 10 percent disabling, each effective September 23, 2015. The evidence of record does not contain any communication from him prior to September 23, 2015 that may be construed as an intent to seek or apply for service connection for hearing loss or tinnitus. Given the foregoing, the earliest possible effective date, under the law, for the grant of service connection for bilateral hearing loss and tinnitus is September23, 2015. In his October 2016 substantive appeal, the Veteran requested an effective date in December 2010. He stated that the paperwork he received specifically instructed him not to contact VA and advised him to wait for VA to contact him instead. He stated that due to moving he had no way of knowing that VA attempted to send him paperwork that he had to follow up on. Once he had a permanent address he became concerned when VA failed to contact him. He stated that during the past two weeks VA sent mail to the wrong address and questioned the reliability of the United States Postal Service. In this regard, the Board notes that in response to the Veteran’s intent to file a claim in December 2010, VA sent the Veteran correspondence in December 2010 that, contrary to the Veteran’s claim, stated that he needed to file a formal claim for benefits. There is also nothing to indicate that the RO failed to mail the VA Form 21-526 to the Veteran at that time nor is there any evidence that he did not receive the December 2010 letter or that it was returned to VA as undeliverable. It is also unclear why the Veteran waited almost five years from December 2010 to September 2015 to file his claims for service connection for bilateral hearing loss and tinnitus. The duty to assist is not a one-way street. If a Veteran wants help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence, including keeping VA apprised of the Veteran’s correct mailing address. Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Although it appears that some correspondence mailed to the Veteran was returned as undeliverable, this was after the filing of the Veteran’s September 2015 claims and does not provide a basis to assign an effective date earlier than September 23, 2015 for the grants of service connection for bilateral hearing loss and tinnitus. Regarding the Veteran’s claim that he was instructed not to contact VA, there is no correspondence or documentation in the file that instructed the Veteran to wait for VA to contact him concerning his claims; this is simply not credible. While the Board is sympathetic to the Veteran’s contention, and understands the point clearly, the Board is without authority to grant eligibility to benefits simply because it might perceive the result to be “equitable”. See, 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board also observes that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). The authority to award equitable relief is committed solely to the discretion of the Secretary under 38 U.S.C. § 503 (a), and the Board is without jurisdiction to consider what is committed solely to the Secretary’s discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). Therefore, the Board is bound by the relevant laws and regulations governing the payment of monetary benefits. And those laws and regulations do not permit an award of an earlier effective date than September 23, 2015, for the grant of service connection and the assignment of disability ratings for bilateral hearing loss and tinnitus. The controlling statute and regulation provide that the effective date for a grant of service connection is 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 (b)(2)(i). Here, the date of claim, September 23, 2015, is the later of the two dates, and is the appropriate effective date. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). The Court has held that where the law not the evidence is dispositive, the Board should deny an appeal because of an absence of a legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran has failed to allege facts which meet the criteria in the law or regulations, and her claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel