Citation Nr: 1808908	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  16-31 523	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to an earlier effective date than October 16, 2015, for the grant of service connection for hearing loss.

2.  Entitlement to an earlier effective date than October 16, 2015, for the grant of service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel



INTRODUCTION

The Veteran had active service from March 1957 to March 1961.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2016 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO).

The issue of whether there was clear and unmistakable error in the December 2010 rating decision denying service connection for hearing loss and tinnitus has been raised by the record in an October 2015 statement and an April 2016 VA claims form, but 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) (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).


FINDING OF FACT

On October 16, 2015, more than one year following active service, the Veteran filed a claim to reopen the previously denied claims of service connection for bilateral hearing loss and tinnitus.


CONCLUSIONS OF LAW

1.  The criteria for an earlier effective than October 16, 2015, for the award of service connection for hearing loss have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.159, 3.400 (2017).

2.  The criteria for an earlier effective than October 16, 2015, for the award of service connection for tinnitus have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.159, 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. § 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2017).

The resolution of the Veteran's appeal for earlier effective dates turns on the law as applied to the undisputed facts in the Veteran's claim regarding the date his claim was received and date his entitlement arose.  As this case turns on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the claim.  Consequently, no further notice or development under the VCAA is warranted.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law).  Nonetheless, the Veteran has been notified of how VA assigns effective dates.

II.  Earlier Effective Date

The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, 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) (2012).

Generally, the effective date of an award of an increased evaluation is the date of receipt of claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1) (2017).  For disability compensation, the effective date of an award shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date otherwise, the date of receipt of claim.  38 C.F.R. § 3.400(o)(2) (2017).

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.

Service connection for hearing loss and tinnitus was denied in a December 2010 rating decision.  The Veteran did not submit a Notice of Disagreement within a year and new evidence was not received within a year.  See 38 C.F.R. §§ 3.156(b), 20.201 (2017).  Therefore, the December 2010 rating decision is final.  The Veteran submitted a new claim of service connection for hearing loss and tinnitus on October 16, 2015.  A January 2016 rating decision granted service connection for hearing loss and tinnitus as of October 16, 2015.

The proper effective date October 16, 2015, for the grant of service connection was afforded since the claim was received more than one year following the Veteran's separation from service.  See 38 C.F.R. § 3.400(b)(2).  There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability.  See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability).  Therefore, the claim for earlier effective dates must be denied.


ORDER

Entitlement to an effective date earlier than October 16, 2015 for the award of service connection for hearing loss is denied.

Entitlement to an effective date earlier than October 16, 2015 for the award of service connection for tinnitus is denied.




____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs