Citation Nr: 22015682 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 16-15 778 DATE: March 18, 2022 ORDER Entitlement to an effective date earlier than September 2, 2013, for the grant of service connection for tinnitus, is dismissed. Entitlement to an effective date earlier than September 2, 2013, for the grant of service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. In January 2018, prior to the promulgation of a decision in the appeal, the Veteran requested in writing to withdraw his appeal of the issue of entitlement to an effective date earlier than September 2, 2013, for the grant of service connection for tinnitus. 2. The first communication from the Veteran that sought service connection for left ear hearing loss was received on September 2, 2014; no submission received prior to that date can be reasonably construed as a claim for benefits. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal with respect to the issue of entitlement to an effective date earlier than September 2, 2013, for the grant of service connection for tinnitus have been met. 38 U.S.C. §§ 7105(a), 7108 (2018); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 2. The criteria for an effective date earlier than September 2, 2013, for the grant of service connection for left ear hearing loss have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from February 1977 to October 1977. These matters come before the Board on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing but requested a postponement in an October 2021 correspondence. In a January 2021 correspondence, the Veteran explicitly withdrew his request for a hearing. As such, the hearing requests are considered withdrawn, and the Board may proceed with the appeal. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. In January 2018, the Veteran withdrew his appeal of the issue of entitlement to an earlier effective date for the grant of service connection for tinnitus. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). As such, there remains no allegations of errors of fact or law for appellate consideration for the above issue. Accordingly, the Board does not have jurisdiction to review the appealed issue, and it is dismissed. Effective Date The Veteran seeks an effective date earlier than September 2, 2013, for the grant of entitlement to service connection for left ear hearing loss. Specifically, he contended that the effective date for his left ear hearing loss should go back to his date of discharge, October 22, 1977. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on new and material evidence under 38 C.F.R. § 3.156 (other than service department records) which is received within the appeal period or prior to the appellate decision shall be as though the former decision had not been rendered. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1). In cases where the evidence is received after a final disallowance, the effective date shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2). Similarly, the effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160 (d). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160 (e). Generally, if a claim is received within one year after separation from service, the effective date shall be "day following separation from active service." 38 C.F.R. § 3.400 (b)(2). Otherwise, the effective date shall be date of claim or date entitlement arose, whichever is later. Id. VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). A claim is 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), 3.155. The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. A review of the claims file indicates that the Veteran initiated a claim for service connection for left ear hearing loss on August 29, 2014, and this form was received by the VA on September 2, 2014. A November 2014 rating decision subsequently granted service connection for left ear hearing loss. Under regulations in effect prior to March 24, 2015, any communication or action indicating an intent to apply for benefits could be considered an informal claim as long as it identified the benefit sought. 38 C.F.R. § 3.155(a). Here, the Board notes that there are no communications from the Veteran, either formal or informal, that were received by the VA prior to September 2, 2014, that evidenced a belief that his left ear hearing loss was related to service. Thus, the VA did not receive the Veteran's application for service connection for left ear hearing loss until September 2, 2014, many years post-service separation. Based on that submission, a November 2014 rating decision granted service connection for left ear hearing loss, effective September 2, 2013. The Veteran was granted this effective date due to Public Law 112-154, Section 506 which allowed for up to a one-year retroactive effective date for awards of disability compensation based on fully developed original compensation claims received from August 6, 2013, through August 5, 2015. Although the Board has considered the Veteran's claim, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. While the disability itself may have manifested earlier, this does not decide the effective date in this case; the date of claim does. The controlling regulation clearly and specifically provides that the effective date shall be the date of receipt of the appellant's claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. §§ 3.400, and no effective date for the award of service connection earlier than September 2, 2013 (date of receipt of claim for service connection including the one-year retroactive award) is assignable, the appeal for an earlier effective date as to the issue of service connection for left ear hearing loss is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). There is no evidence to indicate that the Veteran submitted a claim for entitlement to service connection for left ear hearing loss within one year after separation from service, as such he is not entitled to an effective date of one day following discharge. For these reasons, the Board concludes that an effective date prior to September 2, 2013, for the award of service connection for left ear hearing loss is not warranted as a matter of law. D. Ware Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.