Citation Nr: 21025948 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-30 730 DATE: April 29, 2021 ORDER Entitlement to an effective date of December 2, 1993, for the award of service connection for a right knee disability is granted. Entitlement to an effective date of December 2, 1993, for the award of service connection for hearing loss is granted. Entitlement to an effective date earlier than September 30, 2015, for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than September 30, 2015, for the grant of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol/cocaine use disorder is denied. FINDINGS OF FACT 1. Although the Veteran submitted a timely Notice of Disagreement (NOD) for his service connection claim for a right knee disability, the RO issued the November 1994 Statement of the Case (SOC) to an outdated address; as the Veteran did not receive notice of his appellate rights, the July 1994 decision never became final. 2. Although the Veteran submitted a timely NOD for his service connection claim for hearing loss, the RO issued the November 1994 SOC to an outdated address; as the Veteran did not receive notice of his appellate rights, the July 1994 decision never became final. 3. There is no document, prior to the September 30, 2015 claim for service connection for tinnitus, that may be construed as a formal or informal claim of entitlement to service connection for tinnitus. 4. There is no document, prior to the September 30, 2015 claim for service connection for PTSD, that may be construed as a formal or informal claim of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of December 2, 1993, for the award of service connection for a right knee disability have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 2. The criteria for entitlement to an effective date of December 2, 1993, for the award of service connection for hearing have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 3. The criteria for entitlement to an effective date earlier than September 30, 2015, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 4. The criteria for entitlement to an effective date earlier than September 30, 2015, for the grant of service connection for PTSD with major depressive disorder and alcohol/cocaine use disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to July 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2016 and July 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified before the undersigned Veterans Law Judge at a January 2021 Board hearing. A transcript of this hearing is of record. Effective Date Generally, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after 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 C.F.R. § 3.400. An exception to this rule applies if an application for benefits is received within one year from the date of a veteran’s discharge or release from active service, and an award is made on the basis of that application. In this situation, the effective date of the award is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The pertinent regulation allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives a complete claim form within one year. 38 C.F.R. § 3.155(b). If submitted in writing, the intent to file must be on a standardized form. Id. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an effective date earlier than September 30, 2015, for the grant of service connection for a right knee disability. 2. Entitlement to an effective date earlier than September 30, 2015, for the grant of service connection for hearing loss. The Veteran contends that he is entitled to an effective date of December 2, 1993, the day the Veteran originally submitted his application for service connection for a right knee disability and hearing loss. For the reasons discussed below, the Board agrees. By way of history, the Veteran originally filed a claim for an injury to both knees and hearing loss in December 1993.The mailing address provided by the Veteran was P.O. Box 1006 Somis, California. The Veteran was denied service connection for his hearing loss, left ear, and his right knee disability in a July 1994 rating decision. The rating decision was sent to P.O. Box 1006 Somis, California. On the Veteran’s VA Form 21-22 appointing the Veterans of Foreign Wars as his Veterans Service Organization that was received in October 1994, the Veteran’s address was noted to be 1666 LA Avenue, Somis, California. In addition, the Veteran submitted an informal NOD, via VA Form 21-4138, in October 1994 that listed two addresses, however, neither address provided was the prior P.O.Box. Thereafter, the Veteran was issued a statement of the case (SOC) in November 1994, that was mailed to the Veteran’s prior address at the P.O. Box. The Veteran did not perfect a timely appeal. In September 2015, the Veteran filed a claim for service connection and listed disabilities including PTSD, tinnitus, hearing loss, and a bilateral knee condition. In a March 2016 rating decision, the Veteran was granted service connection for a right knee disability and bilateral hearing loss, effective September 30, 2015, the date of receipt of the Veteran’s petition to reopen. On his October 2016 NOD, the Veteran indicated that his effective date should date back to July 1994. At his Board hearing, the Veteran testified that he never received the SOC issued in November 1994 because he was moving around due to homelessness and in and out of rehabilitation. As indicated above, the pertinent documents indicates that the Veteran’s December 1993 VA Form 21-526 listed a P.O. Box address. Thereafter, an October 1994 VA Form 21-22 (Appointment of Veterans Service Organization) and VA Form 21-4138 (Statement in Support of Claim) both listed addresses, other than the Veteran’s P.O Box 1006, indicating that the Veteran had moved and had provided the RO notice of his change of address. The cover letter attached to the November 1994 SOC indicates it was mailed to Veteran’s previous P.O. Box address. The presumption of administrative regularity dictates that in the absence of clear evidence to the contrary, public officials have properly discharged their official duties. See Ashley v. Derwinski, 2 Vet. App. 62 (1992). In the instant case however, it appears that the SOC was sent to an incorrect address. Although the record contains no indication that the November 1994 SOC was returned as undeliverable, the evidence shows that the Veteran provided a new mailing address to the RO on at least two separate VA forms, that the RO had notice of the new address, and that the SOC was not mailed to that address. See Lamb v. Peake, 22 Vet. App. 227, 231-32 (2008) (observing that “[i]f the file reveals that the address used was incorrect or has been updated, then the Secretary must resend the notice to the proper address.”). The Veteran has testified that he did not receive a copy of the SOC, and the aforementioned documents support his assertions. VA regulations provide that an appeal consists of a timely filed NOD in writing, and after a SOC has been furnished, a timely filed Substantive Appeal, and that a Substantive Appeal must be filed within sixty days after mailing of the SOC. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. Because the Veteran never received a copy of the November 1994 SOC and notice of his appellate rights, the finality of the July 1994 rating decision was tolled. Based on the above facts, the July 1994 rating decision never became final and the effective date regulations pertaining to reopened claims are inapplicable. As the evidence shows that the Veteran filed his claims for a right knee condition and hearing loss on December 2, 1993, the effective date should date back to December 2, 1993. 38 C.F.R. § 3.400(b)(2). 3. Entitlement to an effective date earlier than September 30, 2015, for the grant of service connection for tinnitus. 4. Entitlement to an effective date earlier than September 30, 2015, for the grant of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol/cocaine use disorder The Veteran contends that he is entitled to an effective date prior to September 30, 2105, for the grant of service connection for PTSD with major depressive disorder and alcohol/cocaine use disorder and tinnitus. Essentially, he reports that the effective date should date back to December 1993. By way of background, in December 1993, the Veteran filed a formal claim for service connection for an injury to both knees, both thumbs and hands, hypertension, and hearing loss. There was no mention of PTSD or tinnitus. The Veteran first filed claims for PTSD and tinnitus in September 2015. The Veteran was granted service connection for tinnitus in March 2016 and PTSD in a July 2016 rating decision, effective September 30, 2015. On his October 2016 NOD, the Veteran indicated that his effective date should be July 1994. The Veteran stated that when he first filed for these disabilities, he was denied. In addition, the Veteran stated that he has been seeing medical doctors since 1994 for his PTSD. After a review of the record, the Board finds that there is no communication, either formal or informal, from the Veteran or his representative prior to September 30, 2015 that could constitute a claim for service connection for either a psychiatric disorder or tinnitus, and the Veteran has not otherwise established that there exists any such claim. Prior to September 2015, the claims file is silent for a request for service connection for a psychiatric disorder or tinnitus. Notably, the Veteran filed a formal claim for hearing loss in December 1993 and did not mention tinnitus or ringing in his ears. The Veteran also did not mention a psychiatric disorder. Additionally, the Veteran testified that he did not file any claim between 1993 and 2015. The Board has considered the Veteran’s argument that he has suffered from tinnitus and PTSD prior to September 30, 2105, however, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). While sympathetic to the Veteran’s contentions, according to the applicable regulation, the effective date of the grant of service connection for PTSD and tinnitus can be no earlier than the date of receipt of the claim, which, in this case, is the date that VA received the Veteran’s completed application form. Accordingly, the earliest possible effective date for the grants of service connection for PTSD and tinnitus is September 30, 2015. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Board finds that the preponderance of the evidence is against the assignment of an effective date for the grants of service connection for PTSD and tinnitus earlier than September 30, 2015. Therefore, the benefit-of-the-doubt rule is not for application and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.