Citation Nr: 21032006 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-05 948A DATE: May 25, 2021 ORDER Entitlement to an effective date prior to April 30, 2014, for the grant of service connection for bilateral hearing loss is denied. Entitlement to an effective date prior to April 30, 2014, for the grant of service connection for tinnitus is denied. FINDINGS OF FACT 1. There were no informal or formal unadjudicated claims for service connection for bilateral hearing loss prior to April 30, 2014. 2. There were no informal or formal unadjudicated claims for service connection for tinnitus prior to April 30, 2014. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 30, 2014, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to April 30, 2014, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1971 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office. In April 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary claims file. Earlier Effective Date The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. However, earlier effective dates can be established in some cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 (the Act), Public Law 112-154, Section 506, 126 Stat. 1165 was signed into law on August 6, 2012, thereby amending 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013, through August 5, 2015. Under the Act, an effective date of up to one year prior to submission of the claim may be assigned when evidence demonstrates that the disability existed for one year prior to submission of the claim. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim 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. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Facts and Analysis 1. Entitlement to an effective date prior to April 30, 2014 for the grant of service connection for bilateral hearing loss. 2. Entitlement to an effective date prior to April 30, 2014 for the grant of service connection for tinnitus. The Veteran contends that he is entitled to an effective date prior to April 30, 2014 for the grant of service connection for his bilateral hearing loss and tinnitus. On April 30, 2015, the Veteran submitted a Fully Developed Claim for benefits for hearing loss. The evidentiary record does not show a claim for benefits, formal or informal, prior to April 25, 2014. The Veteran was afforded a VA audiological examination in August 2015. The examiner noted that the Veteran's service treatment records indicated normal hearing at enlistment and a mild hearing loss in both ears at separation. The Veteran was noted to perform duties with a high risk for acoustic trauma. In an August 2015 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to service connection for bilateral hearing loss and tinnitus, with an effective date of April 30, 2014, which is one year prior to VA's receipt of the claim based on a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a); Public Law 112-154, Section 506, 126 Stat. 1165 (August 6, 2012). In August 2015, the Veteran filed a Notice of Disagreement (NOD) disagreeing with the effective date of the award. He indicated that an injury occurred during basic training in November 1971, as was listed in his medical records, and he had lived with a hearing loss disability since that date. During the April 2021 Board hearing the Veteran reported that he did not file a claim for compensation within a year of separating from military service. He explained that he was never told he had the right to do so. He recalled calling the VA as far back as 1970 for assistance but always being told he made too much money to receive benefits. The Veteran testified he went to a VA Hospital after retiring in 2013, when he first became eligible for benefits based on his income, and he was directed to file for disability. He further reported that this was the first time he specifically identified that the disability he wanted assistance with was related to his military service. See Board Hearing Transcript at 7-8. Although, the record was held open for 30 days to allow the Veteran to submit additional documents, specifically any VA paperwork from 2013, nothing was received by VA. The Board finds that an effective date earlier than April 30, 2014 for the grant of service connection for bilateral hearing loss and tinnitus is not warranted. The Veteran separated from active service in November 1974 and no claim for bilateral hearing loss was received within one year of separation. As such, service connection for bilateral hearing loss may not date back to the day after separation from active duty. In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the United States Court of Appeals for Veterans Claims addressed the issue of entitlement to an earlier effective date, pointing out that the Board is required to look at all communications in the file that may be interpreted as applications for claims, formal and informal, for VA benefits and, then, to all other evidence of record to determine the "earliest date as of which" disability is ascertainable. 38 U.S.C. § 5110 (b)(2); see also 38 C.F.R. §§ 3.400; 3.155 (a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In this case, the Veteran's claims folder contains no document or writing, formal or informal, showing that a claim for service connection for bilateral hearing loss and tinnitus was received prior to April 30, 2014. The law regarding effective dates is clear. The Veteran's claim was received on April 30, 2015, and the AOJ granted an earlier effective date of April 30, 2014 for the grant of service connection for bilateral hearing loss and tinnitus, which is one year prior to VA's receipt of the Veteran's claim based on a liberalizing law. The Board acknowledges the Veteran's claims that his entitlement to service connection for hearing loss and tinnitus should date back to the initial in-service injury, as noted in his military records, because he was unaware of VA disability benefits at separation. However, the presence of records in the evidentiary file reflecting a diagnosis for bilateral hearing loss does not meet the criteria for a claim for benefits. Service treatment records (STRs) cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). As such, although there is evidence in the Veteran's STRs that he had hearing loss, the criteria for a claim, even an informal one, was not met until his April 30, 2015 filing. Therefore, the earliest effective date allowed for service connection for bilateral hearing loss and tinnitus is April 30, 2014. An earlier effective date for the grant of service connection for bilateral hearing loss and tinnitus must be denied. 38 C.F.R. § 3.400. For the reasons discussed above, the preponderance of the evidence is against the Veteran's claim. Thus, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.