Citation Nr: 21005118 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 18-37 223 DATE: January 29, 2021 ORDER Entitlement to an effective date prior to January 20, 2015, for entitlement to service connection for vertigo, with cerebellar gait is denied. FINDING OF FACT VA did not receive the Veteran’s claim for compensation benefits for vertigo, with cerebellar gait prior to January 20, 2015, there was no formal or informal claim prior to that date. CONCLUSION OF LAW The criteria for an effective date for the grant of service connection for vertigo, with cerebellar gait prior to January 20, 2015, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155 (in effect prior to March 24, 2015), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1959 to July 1962. The Board denied the claim in January 2019. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 order, the Court remanded the case to the Board for action consistent with a July 2020 Joint Motion for Partial Remand (JMR). The sole articulated reason for remand in the JMR is that the Board erred when it did not provide an adequate statement of reasons or bases to support its finding that Appellant did not indicate that he sought compensation for vertigo … prior to January 20, 2015. It noted that the Board acknowledged that it must consider whether any evidence of record prior to January 20, 2015, could serve as a formal or informal claim for an earlier effective date but only discussed Appellant’s July 2013 increased rating claim and did not discuss other potentially relevant evidence of record. The JMR includes the following: [The Board] did not discuss other potentially relevant evidence of record. For example, in a Notice of Disagreement (NOD) dated in February 1979 Appellant said he wanted to appeal defected hearing and stated, “Due to inner ear damage I have a problem standing up.” R. at 3116. Appellant also discussed the fact that he was concerned about his balance in a March 1979 VA Form 9. R. at 3106. In an August 1979 decision, the Board acknowledged Appellant’s contentions that “on his last hearing test, they gave him audio tests only and he tried to tell them that he was really concerned about his inner ear and balance,” but it did not discuss that argument in detail and treated the issue as a standard claim for an increased evaluation for hearing loss at the time. R. at 3095 (3094-98). Appellant discussed his balance in another VA Form 9 dated in August 1984. R. at 3055 (3055-57) (“My hearing part maybe? But damage to my ears, my falling, my nerves, my equilibrium, my headaches, my passing out, my balance, and my Disabilities from falling are due to my damaged ears.”). In an October 1985 Informal Hearing Presentation Appellant’s then representative stated, “Because of his dizziness . . . hearing loss and how it affects him, he is no longer capable of continuing in the trucking profession.” R. at 3006 (3005-06). The Board erred when it failed to consider and discuss whether any of these statements could constitute a formal or informal claim for entitlement to service connection for vertigo. Prior to September 25, 2015, to qualify as an informal claim, a written document must evince an intent to apply for benefits and identify the benefits sought. See Shea v. Wilkie, 926 F. 3d 1362, 1367 (Fed. Cir. 2019); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Entitlement to an effective date prior to January 20, 2015, for entitlement to service connection for vertigo, with cerebellar gait is denied. The current effective date of service connection for the Veteran’s vertigo, with cerebellar gait is January 20, 2015. Board will address the documents referenced in the JMR in the context of this claim. The general rule regarding effective dates is found at 38 U.S.C.§5110 (a): Unless specifically provided otherwise in this chapter, 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. The effective date of an award of service connection will be the day following the date of separation from service if the veteran filed a claim within one year after service; otherwise, the effective date will be the date of receipt of his claim. 38 U.S.C. § 5110 (a), (b)(1). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Given the facts of this case, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the applicable regulations, a “claim” is a “formal or informal written communication requesting a determination of entitlement or evidencing belief in entitlement, to a benefit.” 38 C.F.R.§ 3.1 (p) (2013). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a) (2013). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b) (3); 38 C.F.R. §§ 3.1 (p), 3.155 (a) (2013). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. 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”). The RO granted the effective date of January 20, 2015, for service connection in a September 2017 rating decision based on the date of the Veteran’s compensation claim. Service connection for the condition was found based on a private physician’s April 2016 statement linking vertigo to service connected tinnitus in an April 2016 rating decision, with the initial effective date assigned as January 23, 2015, corrected in the September 2017 rating decision when it was concluded that the claim was actually received on January 20. January 20, 2015 is the date of receipt of a VA Form 4138 and a VA Notice of Disagreement form which specifically reference vertigo as a disorder for which he sought compensation. We note that vertigo was granted as “associated with tinnitus.” Service connection for tinnitus is in effect from May 21, 2001. To the extent that this is a granted based on secondary service connection, the same normal rules for effective dates govern secondary claims. Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). Although a secondary condition may have onset before the effective date of the award for service connection for or diagnosis of the primary condition, the effective date of a secondarily service-connected disability is precluded from being before the effective date of the primary service-connected disability. See Frost v. Shulkin, 29 Vet. App. 131 (2017). The Board must consider whether any evidence of record prior to January 20, 2015, could serve as a formal or informal claim in order to entitle the Veteran to an earlier effective date. 38 C.F.R. § 3.155 (2013). As explained below, we find no such claim in the record. In an October 2018 Brief, the Veteran’s representative asserted that an effective date of July 2013 should be awarded, as the Veteran’s July 2013 increased rating claim for bilateral hearing loss and tinnitus should have been interpreted as a separate compensation claim for vertigo. The Veteran’s representative supported this assertion by highlighting the documentation of vertigo in contemporaneous VA treatment records, to include an October 2013 VA examination. First, we find no actual formal claim for service connection for vertigo identified in the record prior to January 20, 2015. The Veteran has not identified a formal claim. However, we will discuss whether there is an informal claim prior to January 20, 2015. The Veteran’s July 2013 increased rating claim for a hearing loss disability does not indicate a desire to seek compensation for vertigo. It makes no reference to vertigo. It merely states he seeks an increased rating for his bilateral hearing loss. Also, at the October 2013 exam, the Veteran reported episodes of vertigo and lightheadedness when rising from sitting to standing and when bending over but was not interested in vestibular evaluation. Vertigo was not diagnosed, and the examiner did not state it was present. There was no communication requesting a determination of entitlement or evidencing belief in entitlement to a benefit as to vertigo. These are not informal claims. We must address the documents cited in the JMR. In the February 1979 NOD, Appellant said he wanted to appeal defected hearing and stated, “Due to inner ear damage I have a problem standing up.” We find this is not an informal claim because it does not indicate an intent to apply for VA benefits and does not identify the benefit sought in terms of service connection for vertigo. It was in response to the denial of a higher rating for hearing loss. Neither the context nor the wording persuades the Board that this should have been identified as a claim of service connection for vertigo. This was not a communication requesting a determination of entitlement or evidencing belief in entitlement to the benefit of service connection for vertigo. As to the discussion about balance concerns in a March 1979 VA Form 9, we also reasonably conclude that this was in the context of seeking a higher rating for the hearing loss rather than articulating a claim for service connection for vertigo. Vertigo is not noted. We find this is not an informal claim because it does not indicate an intent to apply for VA benefits and does not identify the benefit sought in terms of service connection for vertigo. It was expressing an intent to continue his appeal for higher rating for hearing loss. Neither the context nor the wording persuades the Board that this should have been identified as a claim of service connection for vertigo. This was not a communication requesting a determination of entitlement or evidencing belief in entitlement to the benefit of service connection for vertigo. As to the August 1979 Board decision in which it, per the JMR, acknowledged Appellant’s contentions that “on his last hearing test, they gave him audio tests only and he tried to tell them that he was really concerned about his inner ear and balance,” but did not discuss that argument in detail and treated the issue as a standard claim for an increased evaluation for hearing loss, we find no informal claim was identified. Here, we find no intent to apply for VA benefits and no identification of the benefit sought in terms of service connection for vertigo. Indeed, we find that the Board cites to the Veteran’s assertions as an expression of his intent to obtain a higher rating for hearing loss disability. Neither the context nor the wording of any of the argument cited to persuades the Board that this should have been identified as a claim of service connection for vertigo. Vertigo is not mentioned. There was no communication requesting a determination of entitlement or evidencing belief in entitlement to the benefit of service connection for vertigo. As to the VA Form 9 dated in August 1984, we note he stated due to damage in his ears, his balance is off. “My hearing part maybe? But damage to my ears, my falling, my nerves, my equilibrium, my headaches, my passing out, my balance, and my Disabilities from falling are due to my damaged ears.” This was in the context of perfecting an appeal for vocational rehabilitation Chapter 31 benefits. We find no intent to apply for VA compensation benefits and no identification of the benefit sought in terms of service connection for vertigo. We rather find his assertions to be an expression of his intent to obtain vocational rehabilitation Chapter 31 benefits. Neither the context nor the wording of any of the argument cited to persuades the Board that this should have been identified as a claim of service connection for vertigo. Vertigo is not mentioned. This was not a communication requesting a determination of entitlement or evidencing belief in entitlement to the benefit of service connection (compensation) for vertigo. Finally, we note the October 1985 Informal Hearing Presentation for this same Chapter 31 claim that was remanded then ultimately denied by the Board in February 1986. “Because of his dizziness... hearing loss and how it affects him, he is no longer capable of continuing in the trucking profession.” We find no intent to apply for VA benefits and no identification of the benefit sought in terms of service connection for vertigo. We again rather find the representative’s assertions as an expression of his intent to support the claim for vocational rehabilitation Chapter 31 benefits. Neither the context nor the wording of the document persuades the Board that this should have been identified as a claim of service connection for vertigo. Vertigo is not mentioned. It is not a communication requesting a determination of entitlement or evidencing belief in entitlement to the benefit of service connection for vertigo. The Board thus cannot find that a relevant claim, either formal or informal, was received by VA at any time prior to January 20, 2015. In so finding, the Board acknowledges the specific documents cited in the JMR as well as the assertion of the Veteran’s representative that an earlier effective date should be awarded based on the documentation of vertigo in contemporaneous medical records. However, the Board emphasizes as to the representative’s argument that a claim must identify the benefit sought; the mere reference in medical treatment records to that disability is not a claim. See 38 C.F.R.§3.155 (2013); Brannon, supra; MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (medical treatment for a disability, without an intent expressed by a claimant to seek benefits based on that disability does not constitute an informal compensation claim). As to the documents cited to in the JMR, none identifies the benefit sought or evidences belief in entitlement to the benefit of service connection for vertigo. Also, we find no other document that identified the benefit sought, service connection for vertigo. Neither the medical records associated with the claims file nor the documents cited to in the JMR or otherwise identified provide a basis for an award of service connection for vertigo prior to January 20, 2015. The Veteran did not indicate that he sought compensation for vertigo, by either a formal or informal claim, prior to January 20, 2015. Parenthetically, to the extent that the award of service connection may have been based on secondary service connection, service connection for tinnitus is effective from May 2001. As a result, an effective date prior to January 20, 2015, for service connection for vertigo, with cerebellar gait is not warranted, as it is the date of receipt of the claim. 38 U.S.C. § 5110 (a), (b)(1). The provisions of 38 U.S.C. § 5110 (a) require that the effective date shall not be earlier than the date of receipt of application therefor, which in this case is January 20, 2015. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.