Citation Nr: 20021996 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 14-39 158 DATE: March 30, 2020 ORDER Entitlement to an effective date prior to April 24, 2012, for service connection for hearing loss is denied. Entitlement to an effective date prior to April 24, 2012, for service connection for tinnitus is denied. FINDINGS OF FACT 1. There was no pending claim prior to April 24, 2012, pursuant to which service connection for hearing loss could have been awarded. 2. There was no pending claim prior to April 24, 2012, pursuant to which service connection for tinnitus could have been awarded. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 24, 2012, for service connection for hearing loss have not been met. 38 U.S.C. § §§ 1155, 5107 (b) (2012); 38 C.F.R. § 3.400 (2018). 2. The criteria for an effective date prior to April 24, 2012, for service connection for tinnitus have not been met. 38 U.S.C. § §§ 1155, 5107 (b); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge in August 2016. The Veteran’s spouse, B.R., and another representative, G.K., were present as witnesses. A transcript of the hearing is of record. The Board remanded this matter in April 2018. The Board finds there has been substantial compliance with its April 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Effective Date Entitlement to an effective date prior to April 24, 2012, for service connection for hearing loss and entitlement to an effective date prior to April 24, 2012, for service connection for tinnitus The Veteran is seeking an earlier effective date for the award of service connection for hearing loss and tinnitus. Unless Chapter 38 of the United States Code specifically provides otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § § 5110 (a) (2012); 38 C.F.R. § § 3.400 (2018). An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in disability occurred within one year prior to the filing of the claim. See 38 U.S.C. § § 5110 (b)(2) (2012); 38 C.F.R. § § 3.400 (o)(2) (2018). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § § 5110 (a) (2012); 38 C.F.R. § § 3.400 (b)(2)(i) (2018). A “claim” is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § § 3.1 (p) (2018). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § § 3.1 (r) (2018). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § § 3.155 (b) (2018). 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). A review of the claims file reveals that VA received the Veteran’s claims seeking service connection for hearing loss and tinnitus in April 2012. The Veteran asserts he is entitled to an earlier effective date for the award of service connection for hearing loss and tinnitus because he tried to file a claim around 2007 or 2008, and was given the wrong information by VA on what forms to fill out. After careful consideration, the Board finds that the entitlement to an earlier effective date for the grant of service connection for hearing loss and tinnitus is not warranted. In April 2012, the Veteran filed a claim for service connection for hearing loss and tinnitus. In a February 2013 rating decision, following a January 2013 VA examination, the RO granted service connection for hearing loss and tinnitus, assigning a 30 percent disability rating and 10 percent disability rating, respectively, effective April 24, 2012. The Veteran asserts that he should be assigned an effective date of April 23, 2007, when he was diagnosed with hearing loss. The Veteran also said that in 2008 he went to VA and was given forms to fill out. He said after he filled out these forms, he was denied because his income was too high. The Veteran stated that he thought he was filling out a form for compensation, when he was later informed that he had been filing for medical and prescription medication assistance. The Veteran argues that he was misguided by VA personnel. Additionally, at the August 2016 Board hearing, the Veteran argued that he sought assistance for hearing loss in 2007. He said he filled out a form and sent it to Louis Johnson VA hospital. He stated that he received a letter saying that he made too much income. The Veteran said that he thought he was filling out a compensation claim. He was eventually told that he had been filling out a form for medical care. The Veteran requested that the effective date go back to his date of diagnosis which was April 23, 2007. The Veteran said when he went to VA he was given incorrect information. Overall, the Board has reviewed the record in an attempt to find any evidence supporting an earlier effective date. In particular, the Board remanded this claim to have additional records located that would show that the Veteran attempted to file some claim for his hearing loss and tinnitus. The Board notes that additional records were not located. The Board has reviewed the claims file for any informal claims - any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § § 3.155 (a). However, the claims file reflects no communication for the present claim from the Veteran other than his April 2012 claim. The Board is sympathetic to the Veteran’s contentions that he was misguided by VA; however, an earlier effective date is granted by date of receipt of claim, or date entitlement arose, whichever is later. In this case, the April 2012 date of receipt of the claim is later. Additionally, the Board can only make decisions based on records available and there is no evidence that the Veteran attempted to file any type of claim for his hearing loss and tinnitus. Overall, no communication was received from the Veteran, a representative or his congressman indicating an intent to claim service connection for these disabilities prior to April 2012. The appeal for an earlier effective date for a grant of service connection for these issues must be denied. See 38 U.S.C. § § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). There is no reasonable doubt to be resolved as to the issues of an earlier effective date for service connection for hearing loss and tinnitus. See 38 U.S.C. § § 5107 (b) (2012); 38 C.F.R. § § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown, 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.