Citation Nr: 21009356 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-49 093 DATE: February 22, 2021 ORDER Entitlement to an effective date of April 30, 2014, but no earlier, for the grant of service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a psychiatric disorder, to include as secondary to bilateral knee pain and back pain, is remanded. FINDINGS OF FACT 1. VA received the Veteran’s original claim of entitlement to service connection for tinnitus on April 30, 2014. 2. The date entitlement arose was prior to April 30, 2014. CONCLUSION OF LAW The criteria for an effective date of April 30, 2014, for the grant of service connection for tinnitus have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.156, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1982 to August 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2015 and July 2016 rating decisions by the Department of Veterans Affairs (VA) Boston, Massachusetts Regional Office (RO). In June 2020, the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). The issues of entitlement to service connection for bilateral hearing loss, bilateral knee disorder, back disorder, and psychiatric disorder, are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2020). In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the Veteran with his claim decided herein are moot. Effective Date Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2020). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Prior to March 24, 2015, a claim was “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). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. First, the Board finds the Veteran’s attorney properly filed an informal claim on April 30, 2014. The claim was on a form but was signed by the Veteran’s attorney. The form indicated an intent to file for benefits, the type of benefit sought, and it was in writing. The RO issued a June 2015 rating decision granting service connection but never notified the Veteran or the Veteran’s attorney. In a July 2015 correspondence the RO indicated the request was an informal claim for benefits and the Veteran needed to file on a standardized form within one year. First, the informal claim was valid in April 30, 2014 because it was before the March 24, 2015 standardized form requirement. In a June 2015 report of general information, the RO indicated that because the Veteran’s attorney signed the form it was improper. Second, the Veteran’s attorney can file an informal claim on his behalf. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155 (2014). The regulation prior to March 24, 2015 included the Veteran’s “duly authorized representative.” A power of attorney (POA) authorizing the Veteran’s attorney was submitted with the application. Thus, the April 30, 2014 application was the original date of claim because it met the standard for an informal claim. No earlier submission from the Veteran is of record. Accordingly, the date of claim is April 30, 2014. With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. Second, the Board finds entitlement arose prior to April 30, 2104. The Veteran received a June 2015 VA examination. The Veteran reported tinnitus onset in the late 1980s but did not recall circumstances surrounding onset. The examiner determined the Veteran’s tinnitus was related to noise exposure in service. The June 2015 VA examination indicated onset in the 1980s and nexus related to in-service noise exposure. Thus, entitlement arose prior to April 30, 2014 and the later of the two dates is April 30, 2014. Accordingly, entitlement to an earlier effective date is warranted. REASONS FOR REMAND 1. Bilateral hearing loss Remand is warranted for a new VA examination. VA’s duty to assist includes obtaining evidence necessary to substantiate the claim, which may include a thorough and contemporaneous medical examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran received a June 2015 VA examination. The examiner determined bilateral hearing loss was related to in-service noise exposure. The examination did not show hearing loss for VA purposes. During the January 2020 Board hearing the Veteran stated his hearing was getting worse. Because the examination was several years ago and the Veteran indicated his hearing is worse, remand is required for a new VA examination to determine if there is a current disability. 2. Left knee disorder, a right knee disorder, a back disorder, and a psychiatric disorder Remand is required to verify periods of service. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2020). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). The Veteran’s service personnel records (SPRs) indicated additional periods of service. Specifically, a March 2003 SPR noted a DD214 as verification and additional periods of enlistment in 1982, 1987 to 1988, and 1999 to 2003. These DD214s are not included in the claims file. Additionally, the Veteran’s retirement point statement included period of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These periods have not been verified. Accordingly, remand is required for outstanding SPRs. Remand is also required for outstanding service treatment records (STRs). The STRs included in the Veteran’s file are very limited and do not include his enlistment examination or separation examination. Additionally, the February 2015 request only includes one period of active duty. As noted above all periods of service need to be verified and STRs request for all periods of service. Accordingly, remand is required for outstanding STRs. The matters are REMANDED for the following action: 1. Verify all periods of active duty, ACDUTRA, and INACDUTRA, through all appropriate sources. A retirement points summary is not enough, the specific dates must be verified, and records obtained. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his attorney. 2. Obtain all the Veteran’s service treatment records for all periods of active duty, ACDUTRA, and INACDUTRA. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his attorney. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. 4. If additional STRs establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, the appropriate VA examinations and opinions should be provided. 38 C.F.R. § 3.159. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, 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.