Citation Nr: 21022324 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-44 844 DATE: April 15, 2021 ORDER Entitlement to an effective date prior to October 25, 2012 for the grant of service connection for tinnitus is denied. FINDING OF FACT The Veteran did not file a formal or informal claim for entitlement to service connection for tinnitus prior to October 25, 2012. CONCLUSION OF LAW The criteria for an effective date prior to October 25, 2012 for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5110, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1954 to June 1958. This matter is on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In January 2018, the Board denied the Veteran’s claim for entitlement to an effective date prior to October 25, 2012 for the grant of service connection for tinnitus. The Veteran appealed the January 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision, the Court vacated and remanded the portion of the decision that denied entitlement to an effective date prior to October 25, 2012 for the grant of service connection for tinnitus, indicating that the Board failed to provide an adequate statement of reasons or bases that addressed whether the Veteran filed an informal claim for tinnitus in May 1975. Notably, although the Veteran also argued that the Board failed to ensure that the Secretary fulfilled his duty to assist because VA did not obtain the April 1975 hearing examination mentioned in the May 1975 letter, the Court did not make such a finding. However, the Memorandum Decision indicates that, if the May 1975 letter constitutes an informal claim, then the Board must address whether the Secretary fulfilled his duty to assist the Veteran in pursuing that claim. Notwithstanding the foregoing, in October 2020, the Board, without making a determination regarding whether the May 1975 letter constitutes an informal claim for service connection for tinnitus, remanded the issue for a final attempt to locate the April 1975 hearing examination that the Veteran referenced in his May 1975 letter. In doing so, the Board indicated that, if the requested record was deemed unavailable, a memorandum must be associated with the claims file. Following the RO’s requests in October 2020 and November 2020 for the pertinent records, including the April 1975 examination, a January 2021 letter was sent to the Veteran, which explained that the identified VA Medical Center had provided all available records from 1975 and these records did not include an examination dated April 3, 1975. The letter further indicated that the RO determined that these records could not be located and therefore were unavailable for review. The RO further explained that all efforts to obtain the needed information had been exhausted, and further attempts to obtain the records would be futile. Although the Board recognizes that the record does not contain a formal memorandum of unavailability, the RO notified the Veteran in writing of the unavailability of the April 1975 examination. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Nevertheless, as will be discussed below, the Board finds that the Veteran did not file a formal or informal claim for entitlement to service connection for tinnitus prior to October 25, 2012, and therefore, any errors in compliance with the remand directives regarding this claim are harmless. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Entitlement to an effective date prior to October 25, 2012 for the grant of service connection for tinnitus is denied. The Veteran is seeking an effective date earlier than October 25, 2012 for the grant of service connection for tinnitus. Specifically, the Veteran contends that a May 1975 letter was an informal claim for tinnitus, and thus, his effective date for his service-connected tinnitus should be the date of his informal claim. Generally, the effective date of an award of disability compensation is the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). The “date entitlement arose” has been interpreted to mean the date when the claimant met the requirements for the benefits sought; this is determined on a “facts found” basis. 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). When service connection is granted based on a claim that has been finally denied and subsequently reopened by the submission of new and material evidence, the effective date is the date of VA receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q), (r); Sears v. Principi, 16 Vet. App. 244 (2002). A “claim” broadly includes 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). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Furthermore, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The Veteran has been assigned an October 25, 2012 effective date for the award of service connection for tinnitus. The August 2015 rating decision awarding service connection for this disability reflects that the effective date was based on the date of receipt of the Veteran’s initial claim. After a review of the record, the Board finds that there is no basis on which to grant an earlier effective date for tinnitus. Considering the evidence prior to October 25, 2012, the Board notes that the Veteran filed a formal claim for service connection for a “LT Ear Infection - Chronic” in May 1965. In a June 1965 rating decision, the RO denied service connection for a left ear infection - otitis externa - otitis media. Thereafter, in May 1975, the Veteran submitted a letter indicating that he had a hearing examination at a VA Medical Center on April 3, 1975, which showed a hearing deficiency. The Veteran indicated that he had a “history of ear infection and chronic ear problems attributable to and directly resulting from” his active service and requested that his case be considered carefully with a view toward granting him a “compensable disability award.” The Veteran was notified that same month that his hearing condition was denied in June 1965 and new and material evidence had not been received to reopen the previously denied claim, and the Veteran took no further action. The Veteran submitted a claim for “hearing loss” and “tinnitus” on October 25, 2012. The Board has considered the Veteran’s contention that the May 1975 correspondence was an informal, unadjudicated claim for tinnitus. As an initial matter, the Board recognizes that the Veteran was unrepresented when he submitted the May 1975 letter to VA. The Board acknowledges its obligation to read the filings of pro se claimants liberally. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (each emphasizing that pro se filings must be read liberally). However, VA is not required to “conjure up issues that were not raised by the appellant;” claims must be expressed by the appellant either expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998). Even liberally construing this letter, however, there is nothing to indicate that the Veteran intended to file a claim for tinnitus. Tinnitus is not synonymous with ear infections or hearing deficiency. See Monzingo v. Shinseki, 26 Vet. App. 97, 104-105 (2012); Kelly v. Brown, 7 Vet. App. 471, 473 (1995). Furthermore, the Board cannot so broadly interpret “ear problems” as a new claim for tinnitus particularly in light of his previously denied claim for ear infections and the lack of a response from the Veteran following receipt of the May 1975 correspondence from the RO indicating that his hearing condition had been previously denied and new and material evidence had not been submitted to reopen that claim. It is reasonable to assume that if the Veteran had in fact intended to file a new claim for benefits in May 1975, rather than merely attempt to reopen his previously denied claim, he would have indicated as much upon receipt of the RO’s notification letter. Thus, the Board finds that this May 1975 letter is insufficient to find that the Veteran intended to file a claim for tinnitus with VA. Thus, the Board finds that the earliest correspondence from the Veteran indicating his intent to file a claim for tinnitus was on October 25, 2012. Pursuant to 38 C.F.R. § 3.158(a), the proper effective date is the date of the new claim. Even under 38C.F.R. §3.400, the law provides that the effective date of a claim filed after one year from discharge is the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C.§ 5110 (2012); 38 C.F.R. § 3.400(b)(2). Here, there is no dispute that the Veteran filed his claim more than one year following his service discharge. Further, the Board notes that the exact date on which entitlement arose need not be ascertained in order to conclude that the October 25, 2012, date selected by the RO, is the earliest possible effective date here with regards to the claim for service connection for tinnitus. If entitlement arose prior to October 25, 2012, then the date of claim would be the later of the two, and hence, is the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). There is no evidence or argument to support an effective date for the grant of service connection for tinnitus prior to October 25, 2012. Although the Board acknowledges that the Veteran’s referenced April 1975 hearing examination is unavailable, the Board notes that, even if this examination contained a diagnosis of tinnitus or related complaints, medical records cannot themselves establish an intent to apply for benefits and therefore cannot by themselves give rise to a claim for benefits based on service connection. Brannon v. West, 12 Vet. App. 32, 35 (1998) (“The mere presence of the medical evidence does not establish an intent on the part of the veteran to seek . . . service connection.”). Accordingly, even if this examination contained evidence of the presence of tinnitus, as noted above, without any evidence that the Veteran intended to file a claim for benefits for tinnitus prior to October 25, 2012, an earlier effective date for the award of service connection for tinnitus is not warranted. In summary, the Board finds that the evidence does not support a finding that the Veteran submitted any unadjudicated formal claim for service connection for tinnitus prior to October 25, 2012, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. Thus, October 25, 2012 is the earliest possible effective date. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Therefore, the Board finds that the preponderance of the evidence is against the Veteran’s appeal seeking an earlier effective date for the grant of service connection for tinnitus, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.