Citation Nr: A22001222 Decision Date: 01/26/22 Archive Date: 01/26/22 DOCKET NO. 210615-166515 DATE: January 26, 2022 ORDER Entitlement to an earlier effective date prior to December 7, 2020 for a grant of service connection for diabetes mellitus type II is denied. Entitlement to an increased rating in excess of 10 percent for a tinnitus disability is denied. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for diabetes mellitus was received on December 7, 2020, more than a year after discharge from service. VA did not receive from the Veteran or his authorized representative an earlier request for an application for that benefit and there was no earlier communication which could be interpreted as expressing a desire to claim service connection for diabetes mellitus. 2. The Veteran is in receipt of the highest schedular rating for his tinnitus disability. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date prior to December 7, 2020 for a grant of service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 2. The criteria for an increased rating in excess of 10 percent for a tinnitus disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1965 to November 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. In the June 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to an earlier effective date prior to December 7, 2020 for a grant of service connection for diabetes mellitus type II is denied. The Veteran seeks an earlier effective date prior to December 7, 2020 for the grant of his diabetes mellitus, type II disability. Specifically, he asserts he was first diagnosed with diabetes mellitus, type II in April 2020 and that date should be the effective date for the grant of service connection for his diabetes mellitus, type II. Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). 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. 38 C.F.R. § 3.1 (p); see Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also 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). VA amended its 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. 79 Fed. Reg. 57660 (Sept. 25, 2014). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, 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. Such an 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 after 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; Norris v. West, 12 Vet. App. 413 (1999). Here, the Board finds that an exception to the general rule has not been presented. The Veteran's claim for service connection for his diabetes mellitus, type II was received on December 7, 2020, which is more than 50 years after his service discharge in 1968. A review of the claims file further does not reflect any informal or formal claim for service connection for his diabetes mellitus prior to December 7, 2020. There was no such earlier communication that could be interpreted as expressing a desire to claim service connection for diabetes mellitus, type II or a belief in entitlement to VA disability compensation for that disability. 38 C.F.R. § 3.155. While the Veteran believes he is entitled to an earlier effective date of April 2020, the date he was first diagnosed with diabetes mellitus, type II, the documented presence of a disability predating the service connection claim cannot, alone, serve as a basis to assign an earlier effective date. Lalonde v. West, 12 Vet. App. 377, 382-383 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA"). Notably, there are no medical treatment records submitted in April 2020 that can be sympathetically construed as an intent to seek benefits for such a disorder. Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019) ("language that points to records mentioning... a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition" can satisfy the "identify the benefit sought" requirement of 38 C.F.R. § 3.155 (a)). Based on the foregoing reasons, the Board finds that the Veteran is not entitled to an earlier effective date prior to December 7, 2020. Thus, there is no legal basis upon which to find that an earlier effective date for service connection for his diabetes mellitus is warranted. 2. Entitlement to an increased rating in excess of 10 percent for a tinnitus disability is denied. The Veteran seeks an increased rating in excess of 10 percent for his tinnitus disability. Specifically, he asserts that his tinnitus at times is deafening. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran is assigned a 10 percent rating for her service-connected tinnitus, under DC 6260. 38 C.F.R. § 4.87, DC 6260. Under Diagnostic Code 6260, a single 10 percent rating whether or not it affects both ears. 38 C.F.R. § 4.87, Note (2). Additionally, in Smith v. Nicholson, the Federal Circuit held that the maximum schedular rating available for tinnitus is 10 percent. 451 F.3d 1344 (Fed. Cir. 2006). As the Veteran is currently assigned a 10 percent disability rating for his tinnitus disability, there is no legal basis upon which to award an increased rating for tinnitus on a schedular basis, and the Veteran's appeal must be denied. Since a higher rating must be denied as a matter of law, the benefit-of-the-doubt rule does not apply. Sabonis v. West, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.