Citation Nr: 18159449 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-56 086 DATE: December 20, 2018 ORDER Entitlement to an effective date prior to March 21, 2016, for the award of service connection for tinnitus is denied. FINDINGS OF FACT 1. Entitlement to service connection for tinnitus was denied in a July 2014 rating decision. The Veteran did not file a timely notice of disagreement as to this determination. 2. A claim to reopen the issue of entitlement to service connection for tinnitus was received by VA on March 21, 2016. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to March 21, 2016, for the award of service connection for tinnitus have not been met. 38 U.S.C. §§ 5110(b)(2), 7105; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to an effective date prior to March 21, 2016, for the award of service connection for tinnitus The Veteran contests the effective date of March 21, 2016, for the award of service connection for tinnitus. He specifically seeks an effective date of October 31, 2013 when he initially filed a service connection claim for tinnitus. Under the applicable criteria, the effective date of an award of disability compensation based on an initial claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The implementing regulation provides that the effective date of an award of disability compensation is the day following separation from active service, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of claim or the date that entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). A “claim” is defined in the VA regulations as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155(a). The date of receipt of the claim, or “date of the claim,” means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). If VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Id. at 200. In an August 2016 rating decision, the Veteran was awarded service connection for tinnitus, effective March 21, 2016. The Veteran asserts that he previously filed a service connection claim for a cardiovascular disability in 2013, and an effective date back to that date is warranted. Review of the record confirms a prior claim, dated October 28, 2013 and received by VA on October 31, 2013, for service connection for bilateral hearing loss and tinnitus. This claim was initially considered in a rating decision dated July 25, 2014, which denied service connection for both bilateral hearing loss and tinnitus. The Veteran was provided notice of this decision via a VA letter dated July 30, 2014. On November 6, 2014, the Veteran filed a VA Form 21-0958, Notice of Disagreement, contesting the denial of service connection for bilateral hearing loss. No mention was made of the concurrent denial of service connection for tinnitus on either the VA form or the cover memorandum provided by the Veteran’s accredited representative. On March 21, 2016, VA received a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, again seeking service connection for both bilateral hearing loss and tinnitus. This claim was recognized by the RO as the basis for the effective date of the subsequent grant of service connection for tinnitus. The Veteran asserts that the prior November 2014 notice of disagreement should be also accepted as an appeal of the July 2014 denial of service connection for tinnitus, and an earlier effective date awarded on that basis. In awarding an effective date of March 21, 2016, the RO found that the Veteran had failed to appeal the July 2014 rating decision denying service connection for tinnitus, and that decision was final. See 38 U.S.C. 7105. Upon review of the totality of the record, the Board agrees that finality attached to this service connection denial for tinnitus. While the Veteran did timely file a notice of disagreement, this form clearly was restricted to an appeal only of service connection for bilateral hearing loss. The Veteran’s failure to also address the issue of service connection for tinnitus limited the Board’s jurisdiction as to that issue, and thus allowed finality to attach. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000) (“[A] narrow or specific NOD may limit the jurisdiction of the reviewing court to the specific elements of the disability request contested in the NOD.”); Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998) (holding that an NOD that expressed disagreement only as to the assigned effective date did not constitute an NOD as to the evaluation itself); see also Jarvis v. West, 12 Vet. App. 559, 562 (1999). As the July 2014 rating decision is final, it is no longer the appropriate point from which to determine the effective date of an award. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); 38 C.F.R. § 3.400. Indeed, in Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. As the Federal Circuit explained, “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” Id. at 248. Thus, the proper effective date of this award of service connection remains the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816 (c)(1), (c)(2). In the present case, the proper effective date for service connection for tinnitus was assigned by the RO. (Continued on the next page)   As the preponderance of the evidence is against an effective date prior to March 21, 2016, for the award of this benefit, the benefit-of-the-doubt does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel