Citation Nr: 20007883 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 19-37 583 DATE: January 30, 2020 ORDER Entitlement to an effective date earlier than May 23, 2017, for the grant of service connection for tinnitus is denied. FINDING OF FACT The Veteran did not file a formal or informal claim for service connection for tinnitus prior to May 23, 2017. CONCLUSION OF LAW The criteria for an effective date earlier than May 23, 2017, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1950 to October 1952 and in the United States Coast Guard from November 1956 to August 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Law and Analysis The Veteran has not raised any issues with the duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings liberally 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). Unless specifically provided otherwise, 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). The effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. A specific claim in the form prescribed by VA 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) (previously 38 U.S.C. § 3001(a)); 38 C.F.R. § 3.151(a). Prior to March 24, 2015, 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 an intent to apply for one or more benefits under the laws administered by VA from a claimant 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. 38 C.F.R. § 3.155(a). 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. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to an effective date earlier than May 23, 2017, for the grant of service connection for tinnitus. The record does not contain any communication or correspondence prior to May 23, 2017, indicating an intent to file a service connection claim. The Veteran argues that VA treatment records document complaints of tinnitus prior to May 23, 2017. See, e.g., October 2011 VA treatment records. He also states that during the July 2017 VA examination, he reported intermittent bilateral tinnitus for the past four or five years. See July 2017 VA examination report; December 2019 VA Form 9 substantive appeal. VA is obligated to consider all possible bases for compensation; however, this does not mean that it is required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. The presence of tinnitus without a communication intended to function as a claim for benefits does not itself establish entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”); see also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (while the VA should broadly interpret submissions from a Veteran, it is not required to conjure up claims not specifically raised). The Veteran filed a June 2016 claim to reopen the claim for service connection for hearing loss. He did not include a claim for tinnitus. See June 2016 supplemental claim. The Veteran argues that notwithstanding the fact that he did not seek service connection for tinnitus, the RO requested the VA examiner to consider it as part of the examination. He claims that it was evident from the existing record that he had symptoms of tinnitus when he filed the claim to reopen service connection for bilateral hearing loss in June 2016, and therefore, the effective date for service connection for tinnitus should be no later than June 8, 2016, the date of the reopened claim for hearing loss. See December 2019 VA Form 9. Nevertheless, the fact remains that the Veteran did not file any claim for service connection for tinnitus until May 23, 2017. Although hearing loss and tinnitus can be related, they are two separate disabilities. Even assuming that the evidence shows or suggests that he may have had tinnitus and met the requirements for service connection prior to May 23, 2017, the effective date of an award of disability compensation based on an original claim 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; see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). The Board notes that tinnitus was granted on a secondary basis as related to his service-connected bilateral hearing loss. See May 2017 claim; July 2017 rating decision. The effective date of awards of claims granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes mellitus, type II and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of claim of service connection for leukemia), aff’d sub nom Ellington v. Peake, 541 F.3d 1364. Based on the foregoing, the Board concludes that a formal or informal claim for service connection for tinnitus was not received prior to May 23, 2017; accordingly, an effective date prior to May 23, 2017 for the grant of service connection for tinnitus is not warranted. As the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, Associate Counsel 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.