Citation Nr: 21069272 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-27 971 DATE: November 18, 2021 ORDER Entitlement to an effective date earlier than April 30, 2015, for the award of service connection for tinnitus is denied. REFERRAL During the July 2021 Board hearing, the Veteran and his representative contended that there was clear and unmistakable error (CUE) in the July 2010 rating decision that denied service connection for tinnitus, warranting an earlier effective date. Generally, the Board cannot address in the first instance an allegation of CUE in a Regional Office (RO) decision unless the agency of original jurisdiction (AOJ) has first addressed the matter. See Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (assertion of CUE in an AOJ decision must first be presented to and decided by the AOJ before the Board can address the matter). The possibility that the RO had implicitly addressed whether there was CUE in the July 2010 rating decision was discussed during the hearing, but review of the file reflects that the matter was not addressed explicitly or implicitly. Therefore the issue of whether there was CUE in July 2010 RO decision is referred to the AOJ for adjudication. See 38 C.F.R. § 20.904(b) (continuing to provide for referral of unadjudicated claims). The Veteran may resubmit the CUE motion to the AOJ or notify the AOJ that the matter is still pending. As discussed below, the referral of the CUE motion does not preclude the Board from deciding the earlier effective date claim, as these matters are not inextricably intertwined. FINDING OF FACT 1. The Veteran filed a claim of service connection for tinnitus in February 2010 which was denied in a July 2010 rating decision. The Veteran submitted a timely notice of disagreement (NOD) in September 2010 and a statement of the case (SOC) was issued in May 2011. The Veteran did not file a substantive appeal and new and material evidence was not received prior to an appellate decision, and the July 2010 rating decision therefore became final. 2. The Veteran submitted an application to reopen the claim for service connection for tinnitus on April 30, 2015. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than April 30, 2015, for the grant of service connection for tinnitus, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(b), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1971 to April 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for tinnitus. In March 2016 the Veteran filed a NOD as to the assigned effective date and in April 2017 the RO issued a SOC denying an earlier effective date. In May 2017, the Veteran timely filed a substantive appeal (via VA Form 9). In July 2021 the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. As noted, during the July 2021 Board hearing, the Veteran raised the issue of whether there was CUE in a prior AOJ decision which denied the claim of service connection for tinnitus, but the Board cannot address this matter in the first instance. The Veteran may resubmit the CUE motion to the AOJ or notify the AOJ that the issue is still pending. Moreover, the issue of entitlement to an earlier effective date is not inextricably intertwined with a CUE motion. While both are methods by which a veteran may obtain an earlier effective date, they are separate processes, each with distinct requirements for entitlement. See Phillips v. Brown, 10 Vet. App. 25 (1997) (noting that while a veteran may certainly seek an earlier effective date through a subsequent adjudication of a reopened claim while simultaneously pursuing a CUE claim, those issues are not inextricably related). Therefore, although the AOJ has not yet adjudicated the Veteran's CUE motion, the Board will adjudicate the earlier effective date issue on appeal. Tinnitus Generally, an award of service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a 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. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant's behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a). The currently assigned effective date of April 30, 2015 is based on the date the agency of original jurisdiction (AOJ) received the Veteran's application to reopen his previously denied claim for service connection for tinnitus. The Veteran filed his original claim for service connection for tinnitus on February 5, 2010, which was denied in a July 2010 rating decision. In September 2010 the Veteran submitted a timely NOD and in May 2011 the AOJ issued a SOC. The Veteran, however, did not file a substantive appeal and new and material evidence was not received prior to an appellate decision and the July 2010 rating decision therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The effective date for the grant of service connection will be the date of receipt of the petition to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). An application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. 38 C.F.R. § 3.400(q); see Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). "The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Sears v. Principi, 16 Vet. App. 244, 248 (2002). In a December 2015 Statement in Support of Claim (VA Form 21-4138), the Veteran requested an earlier effective date of February 5, 2010, the date he submitted his original claim for tinnitus. The Veteran contends that an earlier effective date is warranted because the previous VA examiner erred when he found that his tinnitus was not related to his military service which was the basis for the July 2010 denial. Although the Veteran was later granted entitlement to service connection for tinnitus, neither the Veteran nor his representative submitted any document that could be construed as a timely substantive appeal pertaining to the previous claim of service connection for tinnitus following the May 2011 SOC. Therefore, the July 2010 rating decision as to the denial of service-connection for tinnitus became final. See 38 U.S.C. § 7105(d)(3); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Furthermore, there is no evidence that the Veteran submitted any formal or informal claim of service connection for tinnitus at any time after the final July 2010 rating decision or May 2011 SOC and prior to the April 30, 2015 application to reopen. As the Veteran submitted an application to reopen the claim for entitlement to service connection for tinnitus on April 30, 2015, this is the earliest possible date for entitlement to service connection for this disability. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Therefore, there is no basis upon which to justify granting an effective date earlier than April 30, 2015 and the appeal for an earlier effective date for the award of service connection for tinnitus is must be denied. Further, since the July 2010 decision is final, the only way that an earlier effective date may be assigned for the award of service connection for tinnitus is if CUE can be shown in a prior AOJ decision which denied service connection for that disability. 38 C.F.R. § 3.105(a). The Veteran raised the issue of whether there was CUE in the prior AOJ decision at the July 2021 Board hearing. However, as noted above, the AOJ has not adjudicated the Veteran's CUE motion and the Board does not have jurisdiction to adjudicate the motion in the first instance. The Board notes that, while the granting of a CUE motion can result in an earlier effective date, see 38 C.F.R. § 3.105(a) (finding of CUE has same effect as if corrected decision had been made on date of reversed decision), the Board may refer a CUE motion to the AOJ while deciding an earlier effective date claim even when the ultimate disposition of the CUE motion could result in an earlier effective date because a CUE motion and an earlier effective date claim are not inextricably intertwined. See Phillips v. Brown, 10 Vet. App. at 25; see also Brown v. Shinseki, No. 2011-7071, 430 Fed. Appx. 886, 2011 WL 2710353 (Fed. Cir. July 13, 2011) (unpublished per curiam decision) (affirming Veterans Court decision that both affirmed a Board denial of an earlier effective date and found that it lacked jurisdiction to review a CUE claim that the Board had referred). Neither the Veteran nor his representative have presented any other specific argument as to why an earlier effective date is warranted for the award of service connection for tinnitus. In sum, there is no evidence of any intent to file or formal or informal application to reopen the claim of service connection for vestibular disability at any time subsequent to the May 2011 SOC and prior to the April 30, 2015 application to reopen. There are only two documents received between these dates, an RO rating checklist and case review document. Thus, April 30, 2015 is the earliest possible effective date because that is the date of the application to reopen following the most recent prior final denial. 38 C.F.R. § 3.400 (q)(2); (r). See also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of CUE, [a veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). For the foregoing reasons, the preponderance of the evidence is against the claim for an effective date earlier than April 30, 2015, for the grant of entitlement to service connection for tinnitus. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.