Citation Nr: 1807288	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-42 299	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an effective date earlier than February 6, 2004, for the award of service connection for tinnitus.  


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. N. Nolley, Associate Counsel 






INTRODUCTION

The Veteran had active service in the United States Navy from July 1955 to July 1963.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted an earlier effective date of February 6, 2004, for the award of service connection for tinnitus, on the basis of clear and unmistakable error (CUE).   

In December 2017, the Veteran testified before the undersigned Veterans Law Judge at a travel board hearing; a transcript of that hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

On February 6, 2004, the Veteran submitted an original claim for entitlement to service connection for tinnitus.  


CONCLUSION OF LAW

The criteria for an effective date prior to February 6, 2004, for the award of service connection for tinnitus have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.400 (2017).





REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Burden of Proof

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.  
	
Law and Analysis 

Generally, the effective date of an award of disability compensation based on an original claim for service connection will be the date of receipt of the claim or the date the entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101 (a); 38 C.F.R. § 3.151.  A "claim" is 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 an intent to apply for one or more benefits administered by VA may be considered an informal claim.  See 38 C.F.R. § 3.155 (a).  The benefit sought must be identified, though it need not be specific.  See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).  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.

By way of background, the Veteran sent a letter to his congressman in December 1997 concerning his hearing difficulties since service.  The informal claim was forwarded to the VA.  On January 13, 1998, the VA responded in a letter directing the Veteran to complete the attached VA Form 21-526, Veteran's Application for Compensation or Pension, and to return it to the nearest RO for an official determination.  On February 6, 2004, the RO received another informal claim from the Veteran's congressman.  The Veteran explained that he submitted a VA Form 21-526 to the RO in Detroit, Michigan in 1998, but never received a response.  In February 2004, the Veteran was notified that the RO was unable to identify a VA claims file or receipt of any claim for VA benefits, but that the RO would make another attempt to locate a VA claims file.  The Veteran was instructed to complete a VA Form 21-526.  Thereafter, the RO received a completed VA Form 21-526 on February 20, 2004.  

In a December 2011 rating decision, the RO granted entitlement to service connection for tinnitus, effective October 4, 2005.  In a January 2014 rating decision, the RO found that there was CUE in the December 2011 rating decision and therefore, the proper effective date was February 6, 2004.  The RO explained that the Veteran submitted a formal claim on February 20, 2004, which was within one year of the date of receipt of the February 6, 2004, informal claim.  

Throughout this appeal, the Veteran has argued that the correct effective date was December 12, 1997, when he sent an informal claim to his congressman.  He claimed that he submitted a VA Form 21-526 in February 1998.  

As noted above, generally, the effective date of an award of disability compensation based on a reopened claim for service connection will be the date of receipt of the claim or the date the entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  The Veteran filed an informal claim for service connection for tinnitus on February 6, 2004.  A formal application was submitted on February 20, 2004, less than a year after the RO notified the Veteran that a completed application form must be completed.  Accordingly, the proper effective date by law is February 6, 2004, the date of the claim.  

The Board notes the Veteran's contention that he filed a formal claim in February 1998.  The United States Court of Appeals for Veterans Claims (Court) has held that, "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties."  Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)).  Unless rebutted by "clear evidence to the contrary," VA is entitled to the benefit of this presumption.  Id.  Therefore, it must be presumed that VA properly discharged its official duties by properly handling claims or appeals submitted by the Veteran, to include date stamping and placing it in the claims file.  See M21-1MR, Part III.ii.1.E.2.b (2017) (directing that each document VA receives by the RO must be stamped with the date of receipt).

The Board finds that the evidence submitted by the Veteran is not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity.  Instead, the claims file shows that the RO submitted an informal claim to his congressman in December 1997.  The informal claim was forwarded to the VA and in a January 13, 1998, letter, the RO directed the Veteran to submit a formal application.  The Veteran did not submit a formal claim until September 20, 2004.  

Based on the foregoing, the Board concludes that the earliest possible effective date for the grant of service connection for tinnitus is February 6, 2004.  Accordingly, the claim must be denied.


ORDER

Entitlement to an effective date earlier than February 6, 2004, for the award of service connection for tinnitus is denied.



____________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs