Citation Nr: 1806954	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-25 327	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to an effective date earlier than December 23, 2013 for the grant of service connection for tinnitus.  

2.  Entitlement to service-connection for a low back disorder. 

3.  Entitlement to service-connection for a left shoulder disorder. 

4.  Entitlement to service-connection for a left knee disorder. 

5.  Entitlement to service-connection for a left elbow disorder.  


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

K. Wysokinski, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from February 1990 to April 1992.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The Veteran presented sworn testimony at a hearing before the undersigned in November 2017.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to service-connection for a low back, left knee, left shoulder, and left elbow disorders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The Veteran did not submit a claim, either formal or informal, for service connection for tinnitus until December 30, 2013.


CONCLUSION OF LAW

Entitlement to an effective date prior to December 30, 2013, for the grant of service connection for an acquired psychiatric disorder is not warranted.  38 U.S.C. 
§§ 5101, 5110, 7104 (2012); 38 C.F.R. §§ 3.1(p), 3.400 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Board must deny the claim for an earlier effective date for tinnitus as the evidence shows that the current effective date of December 30, 2013 is the date the Veteran first filed a claim for benefits.  The Veteran seeks an earlier effective date for the grant of service connection for tinnitus.  The basic facts are not in dispute.  The Veteran's initial application for service connection was received by VA on December 30, 2013.  

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be 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.  The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2).

A specific claim in the form prescribed by the Secretary must be filed in order 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).  The term "claim" or "application" means 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).

Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant 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 claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

Here, the RO granted service connection effective the date the Veteran's original claim of service connection was received by VA.  An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.  Lalonde v. West, 12 Vet. App. 377, 382 (1999).  

The Board is sympathetic to the Veteran's argument that he sought to file a claim in 2006.  However, as the Veteran's Form 9 and application for benefits indicate, he was unfortunately unable to complete an application in 2006, formal or otherwise.  
Because the Veteran did not file a formal or informal application for service connection prior to December 30, 2013, VA is precluded, as a matter of law, from granting an effective date prior to that date for service connection for tinnitus.  As such, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law.  


ORDER

An effective date earlier than December 30, 2013 for the grant of service connection for tinnitus is denied.


REMAND

The Veteran has reported that his low back, left knee, left shoulder, and left elbow have all hurt since an in-service motor vehicle accident around January 1991.  The Veteran is competent to report regarding the symptoms he experienced during and post service and the Board finds his testimony credible.  The Veteran has submitted letters from his friends and family members who report seeing the Veteran struggling with these symptoms since his discharge, corroborating his account.  While the Board finds the Veteran's reports regarding the in-service accident and the resulting symptoms credible, the Board is without medical expertise to determine which disabilities the Veteran presently suffers from as a result of this accident.  Consequently, the Veteran must be afforded a medical examination to ascertain the nature and etiology of his present disorders and their relation to his in-service accident.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain any outstanding medical records.

2.  Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back, knee, elbow, and shoulder injury and symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence. 

3.  After completing the above development, schedule the Veteran for appropriate VA medical examinations to determine the nature and etiology of the Veteran's back, left knee, left elbow, and left shoulder disorders.  The appropriate examiner is asked to 

(a)  Diagnose all back, left knee, left shoulder, or left elbow disorders present and opine as to whether:

(b)  Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? 

In responding to this question, please assume as true the Veteran's competent and credible report regarding the onset of his back, elbow, knee, and shoulder symptoms and that the in-service accident.  

In answering all questions (a) to (b), please articulate the reasons underpinning your conclusions.  That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion.  A report of the examination should be prepared and associated with the Veteran's VA claims file.

4.  Finally, readjudicate the appeal.  If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).





______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs