Citation Nr: A21017265
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 210922-186782
DATE: October 26, 2021

ORDER

An effective date earlier than May 15, 2020 for the grant of service connection for tinnitus is denied.

FINDING OF FACT

The Veteran filed a claim for service connection for tinnitus on May 15, 2020.

CONCLUSION OF LAW

The criteria for an effective date earlier than May 15, 2020 for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from October 1958 to January 1967. His service decorations include the National Defense Service Medal.

In August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The AMA automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). 

The rating decision on appeal was issued in June 2021 and constitutes an initial decision; therefore, the AMA applies. In the June 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301.

To the extent that the Veteran has asserted clear and unmistakable errors (CUE) in any prior RO rating decisions, to include in June 2004, the AOJ did not adjudicate the issues of CUE in any prior rating decisions. Therefore, the Board cannot adjudicate those issues. The Veteran may resubmit his CUE claims to the AOJ or notify the AOJ that the issues are still pending.

Section 5110(a), Title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... of compensation... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection" will be the date of receipt of the claim or the date entitlement arose, whichever is the later."

The Board notes that the Veteran's disability rating for his tinnitus was granted at 10 percent effective May 15, 2020, the date of receipt of the Veteran's claim. He seeks an earlier effective date prior to this date.

The Veteran submitted a supplemental claim for compensation form dated May 15, 2020 requesting to reopen his previously denied claim for service connection for tinnitus. This came over one year after the previous June 2004 rating decision denying the Veteran's claim for tinnitus; therefore, the original filing date has not been preserved. 

To the extent that the Veteran has argued that his tinnitus existed prior to May 15, 2020, this is not a valid basis for an earlier effective date. Here, the law and regulations are clear: the effective date of the grant of service connection will be the date the claim was received by VA or the date entitlement arose, whichever is later. Here, the Board acknowledges that the Veteran was diagnosed with tinnitus prior to May 15, 2020. However, the fact remains that the Veteran's claim for entitlement to service connection for tinnitus was received by VA on May 15, 2020. Thus, the later of the two dateshere, the date the claim was received by VAis the proper effective date for the grant of service connection. The law on this matter is clear, and VA is bound by it. Therefore, the earliest possible effective date for the award of service connection for tinnitus is May 15, 2020, in accordance with 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2).

For these reasons, an earlier effective date for the grant of service connection for tinnitus is not warranted. There is no doubt to be resolved; the claim is denied.

 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jorge Barroso, 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.