Citation Nr: 20021689 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-38 682 DATE: March 26, 2020 ORDER Entitlement to an effective date earlier than July 5, 2016, for the grant of service connection for right leg radiculopathy is dismissed. Entitlement to an effective date earlier than December 9, 2015, for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than July 5, 2016, for the grant of service connection for a back disability is denied. FINDINGS OF FACT 1. At the February 2020 personal hearing, and prior to the promulgation of a decision by the Board of Veterans’ Appeal (Board), the Veteran notified the Board that he was withdrawing his appeal as to his claim for an effective date earlier than July 5, 2016, for the grant of service connection for right leg radiculopathy. 2. The Veteran did not submit a claim for service connection for tinnitus earlier than December 9, 2015. 3. The Veteran did not submit a claim for service connection for a back disability earlier than July 5, 2016. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal as to the claim for an effective date earlier than July 5, 2016, for the grant of service connection for right leg radiculopathy have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for an effective date prior to December 9, 2015, for the grant of service connection for tinnitus and an effective date prior to July 5, 2016, for the grant of service connection for a back disability have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.151, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from November 1991 to May 1994 and March 2005 to June 2006. The Veteran also had other service with a Reserve Component In February 2020 the Veteran testified at a video hearing before the undersigned and a transcript of the hearing has been associated with the claims file. Initially, the Board of Veterans’ Appeal (Board) notes that since the regional office (RO) issued the July 2017 statements of the cases associated with the record additional evidence. However, the Board finds that this evidence is not pertinent as to the above earlier effective date claims. Therefore, the Board finds that it may adjudicate the appeal without either obtaining a waiver or remanding for agency of original jurisdiction review. See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The Withdrawn Claim Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, at the February 2020 personal hearing before the undersigned the Veteran notified the Board that he was withdrawing his appeal as to his claim for an effective date earlier than July 5, 2016, for the grant of service connection for right leg radiculopathy. A written transcript of the personal hearing which memorialized the Veteran’s withdrawal has been associated with the record on appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). VA received this withdrawal before the Board issued a decision. The Board also finds that the withdrawal was: (1) explicit; (2) unambiguous; and (3) done with a full understanding of the consequences of such action on the part of the Veteran. See Acree v. O’Rourke, 17-1749; DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Therefore, there remains no allegation of error of fact or law for appellate consideration with respect to the claim for an effective date earlier than July 5, 2016, for the grant of service connection for right leg radiculopathy. Accordingly, the Board does not have jurisdiction to review it and it is dismissed. The Earlier Effective Date Claims The Veteran asserts, in substance, that service connection for tinnitus and a back disability should date back to the date that he was first diagnosed with the problems while on active duty because they started on active duty and continued since that time. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits 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. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary 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); 38 C.F.R. § 3.151(a). The term “claim” means a formal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Because the current appeal arises out of a claims filed by the Veteran after March 24, 2015, the Veterans’ Administration (VA) administrative claims process only recognizes formal claims. A formal claim was one that had been filed on the form prescribed by VA. Id. Here, the regional office (RO) in the June 2016 rating decision granted service connection for tinnitus effective from December 9, 2015, because this was the date it received the Veteran’s intent to file for a claim based on continuous prosecution. Similarly, the RO in the September 2016 rating decision granted service connection for a back disability effective from July 5, 2016, because this was the date it received the Veteran’s VA 21-526EZ, Fully Developed Claim. The Board cannot find any writings from the Veteran (i.e., a specific claim in the form prescribed by the Secretary) that acted as earlier claims of service connection for tinnitus and a back disability. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a). In this regard, and notwithstanding any claim to the contrary, an effective date of an award of service connection is not based on the earliest medical evidence showing treatment for the disability, to include the service treatment records. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). Instead, the Board finds that the effective dates of the awards of service connection are based on the date that the applications upon which service connection were eventually awarded was filed with VA. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). (Continued on the next page)   Therefore, the Board finds that VA is precluded from granting earlier effective dates for the Veteran’s tin and back disability and these appeals are denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.