Citation Nr: 19119896 Decision Date: 03/19/19 Archive Date: 03/19/19 DOCKET NO. 17-46 531 DATE: March 19, 2019 ORDER Entitlement to an effective date prior to September 25, 2016, for the award of service connection for tinnitus is denied. Entitlement to an effective date prior to September 25, 2016, for the award of service connection for an anxiety disorder is denied. FINDINGS OF FACT 1. A January 2015 rating decision denied the claim of entitlement to service connection for tinnitus; the Veteran did not appeal the decision and this denial became final. 2. A January 2015 rating decision denied the claim of entitlement to service connection for a psychiatric condition; the Veteran did not appeal the decision and this denial became final. 3. The Veteran re-filed his service connection claim for tinnitus on September 25, 2016. 4. The Veteran re-filed his service connection claim for a psychiatric disorder (later granted as anxiety disorder) on September 25, 2016. CONCLUSIONS OF LAW 1. The January 2015 rating decision that denied service connection for tinnitus is final. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2018). 2. The January 2015 rating decision that denied service connection for a psychiatric condition is final. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2018). 3. The criteria for an effective date earlier than September 25, 2016, for service connection for tinnitus have not been met. 38 U.S.C. § 1114(l), (s), 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. § 3.400 (2018). 4. The criteria for an effective date earlier than September 25, 2016, for service connection for anxiety disorder have not been met. 38 U.S.C. § 1114(l), (s), 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2006 to August 2011. Effective Date If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication 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); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Entitlement to an effective date prior to September 25, 2016, for the awards of service connection for tinnitus and for an anxiety disorder. The Veteran has a current effective date of September 25, 2016, for the awards of service connection for tinnitus and for an anxiety disorder. He submits that he should be granted an effective date of May 18, 2014, because that was when he first filed a claim for service connection for tinnitus and service connection for a psychiatric disorder. He stated that he repeatedly attempted to check on his claims on eBenefits, but was unable to because of maintenance issues. He further stated that he tried to check on his claim by calling, but was unable to get through because of long hold times. He has also claimed that letters from VA were lost in the mail. A review of the record shows that VA’s Regional Office addressed the May 18, 2014, application for benefits by issuing a January 2015 rating decision that denied service connection for tinnitus and for a psychiatric disorder. The Veteran was notified of this decision on January 14, 2015. Although the Veteran has alleged that some letters from VA were lost in the mail, the record reflects that the January 14, 2015 notification letter was sent to the Veteran’s address of record at the time. The presumption of regularity with regard to the regular mailing of notice attaches if VA mails notice to the last address of record. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). “Under the common law mailbox rule, ‘if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.’“ Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007) (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)). Indeed, there is no indication in the record that, prior to January 14, 2015, the Veteran ever advised VA of a mailing address that was different from the one he provided in his May 18, 2014, application for benefits, or that the January 14, 2015 notification letter was returned as undeliverable. In the year following the January 2015 rating decision, the Veteran did not submit any statements expressing disagreement with the denials of service connection for tinnitus or service connection for a psychiatric disorder, nor did he submit any new and material evidence concerning either of those claims. See 38 C.F.R. §§ 3.156(b), 20.302. Therefore, the January 2015 rating decision became final based on the evidence of record at that time. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The January 2015 rating decision is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C. §§ 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). As CUE in the January 2015 rating decision has not been alleged, that rating decision serves as a legal bar to an effective date prior to the date of the decision. The Board has reviewed the record closely to ascertain whether, after the January 2015 rating decision, and prior to September 25, 2016, there was any communication from the Veteran expressing an intent to reopen his claim and seek service connection for tinnitus and for a psychiatric disorder. A close review of the record found that there was not; the earliest recorded expression of intent by the Veteran to seek service connection for tinnitus and for a psychiatric disorder after the January 2015 rating decision was in a VA Form 21-526EZ, application for benefits, received on September 25, 2016. Under governing law, generally (with exceptions none of which are here applicable) the effective date of an award based on a reopened claim following a prior final denial of the claim cannot be earlier than the date of receipt of the claim to reopen. In this case, the date of the receipt of the claim to reopen is September 25, 2016, and the Veteran’s awards of service connection for tinnitus and for an anxiety disorder were made effective from that date. There is no statutory authority that would allow VA to grant the Veteran an effective date earlier than September 25, 2016, for the awards of service connection under the circumstances in this case. Based upon the foregoing, the instant claim for an earlier effective date has no legal merit. Accordingly, as a matter of law, the appeal seeking an effective date earlier than June 7, 2004, for the awards of service connection for tinnitus and service connection for an anxiety disorder must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Shah, Associate Counsel