Citation Nr: 18154882 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 15-09 151 DATE: December 4, 2018 ORDER Entitlement to an effective date prior to June 6, 2014, for the award of service connection for tinnitus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s informal claim for service connection was received by the Regional Office (RO) on June 6, 2014; no prior, unadjudicated claim seeking service connection for this disability was received. CONCLUSION OF LAW The criteria for an effective date prior to June 6, 2014, for the award of service connection for tinnitus are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1976 to June 1979. Referred Issue: The Veteran submitted an informal claim for service connection for burns to the face, as well as to the arms and hands, in November 2002, and a formal claim in January 2003. Although the claim for burns to the arms and hands was denied in an August 2005 rating decision, the claim for burns to the face has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Effective Date Claim The Veteran seeks an effective date earlier than June 6, 2014, for the award of service connection for his tinnitus. The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Generally, except as otherwise provided, the effective date of an evaluation and 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 claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. With specific regard to direct service connection claims, the effective date is the day following separation from active service or the date entitlement arose if the claim was received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(ii)(2)(i). Regulations that were in effect prior to March 24, 2015, required that an informal claim “must identify the benefit sought.” See 38 C.F.R. §§ 3.155, 3.160 (2014). The regulations also provided that a claim may 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(p) (2014). The regulations in effect since March 24, 2015, do not allow for informal claims that are not submitted on an application form prescribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160 (2017). The Board will apply the regulations in effect prior to March 24, 2015, as they allowed for informal claims and are therefore more favorable to the Veteran. “[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition.” DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead of assigning an effective date mechanically on the date of a Veteran was diagnosed, “all of the facts should be examined to determine the date that [the Veteran’s disease] first manifested.” See id. at 58. The Board must determine when a service-connected disability manifested itself under the all of the “facts found,” including the medical opinions in question, and assign an effective date based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). “[I]t is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528). The effective date of a service connection claim is not necessarily the date the diagnosis is made or submitted to the VA. Rather, a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 1. Entitlement to an effective date prior to June 6, 2014, for the award of service connection for tinnitus The Board finds that the preponderance of evidence is against the claim for an earlier effective date for the award of service connection for the Veteran’s tinnitus; the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C. § 5107. In this case, on June 6, 2014, the RO received a VA Form 21-4138, Statement in Support of Claim, which reflected the Veteran’s intent to apply for compensation/pension benefits under the Fully Developed Claim (FDC) program, along with a fax cover sheet from the Dakota County Veterans Service Office, both dated June 26, 2013. A June 2014 letter notified the Veteran that he had one year to submit his completed fully-developed claim. The Veteran’s formal claim, via VA Form 21-526EZ, was received in July 2014. Based on the evidence before it, the RO granted service connection for tinnitus, and assigned a 10 percent rating, effective June 6, 2014, the day the informal claim was received. The Veteran asserts, as set forth in his November 2018 appellate brief, that an earlier effective date is warranted because he signed and submitted the informal claim to his representative on June 26, 2013. The fax cover sheet reflects that it was faxed that same day. As such, he contends that he should be given the benefit of the doubt that the claim was filed on the date reflected on the informal claim and fax cover sheet, although it appears to not have been received through no fault of his own. Unfortunately, the law is clear that the effective date is based on the date of receipt of the claim or the date entitlement arose, whichever is later. In this case, the Veteran may have provided the informal claim to his representative in June 2013, but it was not actually received by the RO until June 6, 2014. Additionally, a formal claim was not received until July 3, 2014, more than one year from the date on the informal claim and fax cover sheet. The Board considered whether any evidence of record was received prior to June 6, 2014, which may be construed as a claim, formal or inform, for service connection for tinnitus. However, in this case, there is no document of record earlier than the established date of claim that may reasonably be construed as a formal or informal claim, nor did he submit his claim within one year from separation from service. See 38 C.F.R. §§ 3.151(a), 3.155(a). In fact, the Veteran acknowledged that his informal claim was not received by VA until June 6, 2014. As such, no claim was received by the RO prior to the currently assigned effective date. Although it is unfortunate that the Veteran’s informal claim was not received by the RO prior to June 6, 2014, as stated above, the law is clear that the effective date is the latter of the date of receipt of the claim or the date entitlement arose. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. An addendum opinion is necessary in order to address the etiology of the Veteran’s bilateral hearing loss. Specifically, a September 2014 VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not caused by or a result of service, noting that a delay in the onset of noise-induced hearing loss was extremely unlikely. However, in his November 2018 appellate brief, the Veteran noted that, according to the National Institute of Health, the National Institute on Deafness and Other Communication Disorders, noise-induced hearing loss could be immediate or could take a long time to be noticeable. He also reported hearing loss during service. An addendum opinion is required in order to consider the Veteran’s contentions in his November 2018 brief. The matter is REMANDED for the following action: 1. Obtain an addendum from an appropriate examiner to determine the nature and etiology of the Veteran’s bilateral hearing loss. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result. Although a complete review of the record is imperative, attention is called to the following: *The puretone testing results from the Veteran’s October 1976 enlistment examination and his May 1979 separation examination. *A July 2014 statement in which the Veteran reported that he had “plenty of weapons training” at basic training, and constant subsequent weapons training, which he contended affected his hearing. *A September 2014 VA examination report reflecting a negative opinion. *The Veteran’s March 2015 VA Form 9, in which he contended that he had hearing loss at separation. *The Veteran’s November 2018 appellate brief. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: Whether it is at least as likely as not that the Veteran’s bilateral hearing loss was incurred in or related to active duty service, to include in-service noise exposure. *The examiner should consider the Veteran’s report of hearing loss since service, and the National Institute of Health, the National Institute on Deafness and Other Communication Disorders’ position regarding the possibility of delayed onset of noise-induced hearing loss.* A complete rationale should be provided for any opinion provided. 2. Thereafter, readjudicate the hearing loss claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee