Citation Nr: 21004055 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-59 967 DATE: January 25, 2021 ORDER Entitlement to an effective date prior to April 26, 2016, for service-connected tinnitus is granted. FINDING OF FACT A claim for service connection for tinnitus was received by VA on February 9, 2015. CONCLUSION OF LAW An effective date of February 9, 2015 is warranted for the award of service connection for tinnitus. 38 U.S.C. §§ 5101, 5107, 5110, 7111; 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400, 20.1400, 20.1402, 20.1403, 20.1404. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2021 Board Hearing. The claim is being adjudicated under the One-Touch Program. The hearing transcript will be associated with the record upon its completion. Earlier Effective Date Under VA laws and regulations, if a claim for benefits is received more than one year after separation from service, 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), 5110 (b)(1); 38 C.F.R. § 3.400. The effective date will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2018). In determining the date entitlement arose, when an original claim for benefits is pending, the Board must determine when a claimant’s disability manifested itself under all the “facts found,” notably, “the date on which the evidence is submitted is irrelevant.” McGrath v. Gober, 14 Vet. App. 28, 35 (2000). The Board’s assignment of a disability rating and the determination of the proper effective date are factual findings that the Court reviews under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261 (a)(4). See Evans v. West, 12 Vet. App. 396, 401 (1999); Johnston v. Brown, 10 Vet. App. 80, 84 (1997). 1. Entitlement to an effective date prior to April 26, 2016 for tinnitus is granted. The Veteran seeks an effective date earlier than April 26, 2016, the award of service connection for tinnitus. Review of the claims file reveals that an informal claim seeking service connection for tinnitus (statement in support of claim) was received by VA on February 9, 2015, decades after Veteran’s discharge from service in January 1975. Thereafter, on April 26, 2016, VA received another claim seeking service connection for tinnitus. In an August 2016 rating decision, the RO granted service connection for tinnitus, and assigned a 10 percent disability rating, effective April 26, 2016. Where VA fails to adjudicate a claim, it “remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent ‘claim’ for the same disability.” Ingram v. Nicholson, 21 Vet. App. 232 (2007). If there is no final decision on the original claim prior to a grant of a subsequent “claim” for the same disability, then the claimant may be entitled to an effective date commensurate with the date the original claim was filed because the original claim remained pending and unadjudicated until the later “claim” was granted. A claimant may properly argue entitlement to an earlier effective date on the ground that a later “claim” is merely additional correspondence on the previously pending claim. Id., 21 Vet. App. at 243. Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims. A formal claim was one that had been filed on the form prescribed by VA. See 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). An informal claim was any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1 (p), 3.155(a). An informal claim needed to be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it had to identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). A review of the record shows that the Veteran filed an informal claim for service connection for tinnitus on February 9, 2015. There is no indication that that claim for service connection for tinnitus was formally withdrawn or that it was adjudicated on the merits. Accordingly, the February 9, 2015 claim remained pending until service connection for tinnitus was granted in July 2017, where the regulation requires VA to send the Veteran a formal application and this did not occur. See 38 C.F.R. § 3.155 (“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.”) Given such, the date of claim is February 9, 2015. As to the date that entitlement arose, the evidence of record reflects that a private medical opinion from Doctor’s Hearing Care, notes that the Veteran had tinnitus from at least February 12, 2015. See April 2016, Doctor’s Hearing Care. Since VA regulations direct that an effective date must be the date of receipt of the claim (February 9, 2015) or the date the entitlement arose (February 12, 2015), whichever is later, here, the Veteran’s afforded effective date of February 12, 2015, which is the date of claim, is therefore proper. See 38 C.F.R. § 3.400 (2017). Accordingly, entitlement to an earlier effective date of February 12, 2015 is warranted for the grant of service connection for tinnitus. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.