Citation Nr: 20004892 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 19-00 616A DATE: January 22, 2020 ORDER Entitlement to an effective date prior to July 27, 2016, for service connection for tinnitus is denied. REMANDED Entitlement to a rating higher than 0 percent for a right little finger disability is remanded. FINDING OF FACT 1. The Veteran filed a claim for service connection for tinnitus that was received by VA on July 27, 2016. CONCLUSION OF LAW The criteria for an effective date prior to July 27, 2016, for service connection for tinnitus are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1995 to December 1998. Earlier Effective Date In order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by VA must be filed. 38 C.F.R. § 3.151(a). A claim or application is defined by VA regulation 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 any communication or action, indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). 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. 38 C.F.R. § 3.155(a). The general rule regarding the assignment of effective date for an award based on an original claim for VA benefits is that the effective date 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. An exception to the general rule applies if an application for benefits is received within one year from the date of a Veteran’s separation from active service, and an award is made on the basis of that application. In that limited situation, the effective date of the award is made retroactive to the day following the date of separation from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). 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. § 5110(a); 38 C.F.R. § 3.151(a). A claim is a written communication requesting a determination of entitlement or evidencing a belief in entitlement to a specific benefit. 38 C.F.R. § 3.1(p). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129 (1992). 1. Entitlement to an effective date prior to July 27, 2016, for the grant of service connection for tinnitus Service connection for tinnitus was established in a November 2016 decision. A 10 percent disability rating was assigned, effective July 27, 2016. The Veteran asserts that he is entitled to an earlier effective rating for service connection because tinnitus was shown in a March 1999 VA examination. A review of the record shows that the Veteran separated from service in December 1998. In a statement date-stamped as received by VA on December 3, 1998, the Veteran requested that the VA open a claim for disability compensation benefits for right ear hearing loss. A March 1999 VA examination noted that the Veteran had tinnitus that occurred two to three times per week. The examiner diagnosed tinnitus and noted that Veteran reported the tinnitus began during service. An April 1999 rating decision denied entitlement to service connection for right ear hearing loss because there was no current disability. In a statement date-stamped as received by VA on July 28, 2016, the Veteran requested that the VA open a claim for disability compensation benefits for tinnitus. An intent to file a claim was received on July 27, 2016. A November 2016 VA examination provided an opinion relating tinnitus to service. A November 2016 rating decision established service connection for tinnitus, and assigned an effective date of July 27, 2016. On review of the evidence, both lay and medical, the Board finds that an effective date prior to July 27, 2016, is not warranted for service connection for tinnitus. The Veteran stated that he believed there was an error with the effective date. However, prior to July 27, 2016, the record does not show any earlier claim having been filed for service connection for tinnitus, nor has the Veteran contended that he filed a claim earlier than July 27, 2016. A notation in an examination report, in the absence of a claim, does not constitute a claim for benefits. In addition, while the Veteran had claimed service connection for hearing loss, the Board finds that cannot be construed as a claim for benefits for tinnitus, a separate disability. Therefore, as a claim for service connection for tinnitus was not received by VA within one year of separation from service, the date of receipt of claim or date entitlement arose, whichever is later, is controlling for the purposes of the Veteran’s claim. 38 C.F.R. § 3.400(b)(2). Here, the effective date of July 27, 2016, was assigned, which was the date of receipt of the claim. An effective date earlier than July 27, 2016, is not warranted. The governing legal authority is clear and specific, and VA is bound by it. Therefore, the finds that the preponderance of the evidence is against the claim for an earlier effective date for service connection for tinnitus, and the claim is denied. REASONS FOR REMAND 1. Entitlement to a rating higher than 0 percent for a right little finger disability is remanded. The Veteran attended a VA examination for a right little finger disability in November 2016. Since that examination, the medical record shows occupational therapy for the service-connected right little finger disability. In a January 2019 statement, the Veteran contends that the November 2016 examination was incomplete. The Veteran asserts that the right little finger disability manifests with a deformity, limited motion, and chronic pain. Where the evidence of record does not show the current state of a disability, a more current VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327 (a). In light of the symptomatology reported, remand is required to obtain updated treatment records and provide a more current VA examination that indicates the current symptomatology of the right little finger disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA medical records. 2. Schedule the Veteran for a VA examination to assist in determining the nature and severity of the service-connected right fifth finger disability. All indicated tests and studies should be accomplished and the findings reported. The examiner must review the record and should note that review in the report. The examiner should also provide an opinion as to any functional impairment caused by the right-hand disability. All pertinent symptomatology and findings must be reported. The examiner should provide findings regarding the range of motion of the right hand fingers, and of the right hand. A rationale for all opinions should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.