Citation Nr: A21019496
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 211029-195798
DATE: December 7, 2021

ORDER

Entitlement to an effective date earlier than June 5, 2019 for service connection for tinnitus is denied.

FINDINGS OF FACT

1. A May 2007 rating decision denied entitlement to service connection for tinnitus, and the Veteran did not appeal the decision.

2. VA received the Veteran's supplemental claim to reopen the claim in June 2019.

CONCLUSION OF LAW

The criteria for entitlement to an effective date earlier than June 5, 2019 for service connection for tinnitus have not been met. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.155(d)(1), 3.400, 3.2501(d).

REASONS AND BASES FOR FINDING AND CONCLUSION

A July 2019 rating decision granted service connection for tinnitus, effective June 5, 2019. See 07/24/2019 Rating Decision. The Veteran applied for a Higher-Level Review (HLR) for an EED which the Agency of Original Jurisdiction (AOJ) denied. See 07/21/2020 VA 20-0996; 12/03/2020 Rating Decision. The Veteran appealed for a Direct Review by a Veterans Law Judge, and the appeal was duly docketed at the Board. See 10/29/2021 VA Form 10182; 11/08/2021 AMA Notice. Hence, the appeal is properly before the Board.

Initially, the Veteran applied to reopen his previously denied tinnitus claim on a VA Form 21-526EZ. See 03/13/2019 VA 21-526EZ. A VA letter informed the Veteran that he had used an improper form and provided him the proper form. See 04/26/2019 AMA Notification. VA received the Veteran's supplemental claim on June 5, 2019. See 06/05/2019 VA 20-0995.

The Veteran does not dispute the fact that he applied to reopen a previously denied claim. The sole argument that he advances in support of an EED is that VA received his Intent to File in October 2018. See 10/05/2018 Correspondence. Hence, he should have received an effective date in October 2018. See 10/29/2021 VA Form 10182, P. 2.

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Although VA did in fact receive the Veteran's Intent to File, as specifically provided in the applicable regulation, and as the AOJ noted, the filing date of a supplemental claim is determined by 38 C.F.R. § 3.155 except for the Intent to File provisions. 38 C.F.R. § 3.2501(d). The Veteran's initial March 2019 attempt was not thwarted by an incomplete form but the incorrect form. Hence, that date is not available as an effective date. Per 3.155(d)(1), a claim is deemed filed as of the date that a complete claim on the proper form is received. In the Veteran's case, that was June 5, 2019, and that is the effective date he was assigned. Id.; 3.400.

Based on the above, the Board finds that the preponderance of the evidence is against the claim. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. T. Snyder

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.