Citation Nr: 21073295
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 17-24 950
DATE: December 8, 2021

ORDER

An effective date earlier than December 30, 2014, for the grant of service connection for a tinnitus disorder is denied.  

FINDING OF FACT

The Veteran did not file a formal or informal service connection claim for tinnitus prior to December 30, 2014.  

CONCLUSION OF LAW

The criteria for an effective date earlier than December 30, 2014, for the grant of service connection for tinnitus are not met.  38 U.S.C. §§ 5110, 7104; 38 C.F.R. §§ 3.151, 3.155, 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1967 to December 1969.

This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2021, the Veteran was scheduled for a hearing.  However, he failed to report for his hearing.  The Veteran's request for a Board hearing is therefore considered to have been withdrawn, and the Board will proceed.  38 C.F.R. § 20.702 (d).   

Effective date earlier than December 30, 2014, for the grant of service connection for a tinnitus disorder

In June 2015, the RO granted service connection for tinnitus with an effective date of December 30, 2014.  The Veteran asserts that he is entitled to earlier effective dates for service connection for tinnitus.  

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later.  See 38 C.F.R. § 3.400.  The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service.

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim.  Such informal claims must identify the benefit sought.  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.  38 C.F.R. § 3.155 (a).  

The effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was eventually awarded was filed with VA).  Lalonde v. West, 12 Vet. App. 377 (1999).  

The mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection.  MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006).

A review of the claims file shows that the Veteran filed several claims for service connection between 1970 and 2013.  None of these claims or the Veteran's associated correspondence discussed tinnitus or indicated an intention to file a claim for service connection for tinnitus.  

On December 30, 2014, the Veteran filed a statement in which he took issue with a number of denials of claims for service connection in March 2014; a claim for tinnitus was not denied at that time.  The Veteran indicated that he desired to file a claim for service connection for tinnitus.  See Veteran's statement in support of claim (VA Form 21-4138), received on December 30, 2104.  

In June 2015, the Veteran was first afforded a VA audio examination.

The Board finds that the claim must be denied.  There is nothing in the record to show that the Veteran filed a formal or informal claim for service connection for tinnitus prior to December 30, 2014.  The Veteran has not asserted otherwise, nor has he presented any other specific argument or basis for a grant of the claim.  In summary, there is no evidence that a formal claim or written intent to file a claim for service connection for tinnitus was received prior to December 30, 2014, nor is the issue of service connection for tinnitus shown to have been reasonably raised by the record prior to December 30, 2014.  See 38 C.F.R. §§ 3.155, 3.157; EF v. Derwinski, 1 Vet. App. 324 (1991).  Accordingly, the preponderance of the evidence is against the claim for an effective date prior to December 30, 2014 for the award of service connection for tinnitus.  

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In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application.  38 U.S.C. § 5107.

 

 

T. Stephen Eckerman

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Elliot Harris

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.