Citation Nr: 22016145 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-55 047 DATE: March 21, 2022 ORDER Entitlement to an effective date prior to October 14, 2009, for the award of service connection for a residuals of a traumatic brain injury (TBI) is denied. Entitlement to an effective date prior to October 14, 2009, for the award of service connection for mood disorder not otherwise specified and personality change (an acquired psychiatric disorder) is denied. Entitlement to an effective date prior to October 14, 2009, for the award of special monthly compensation based on housebound status (SMC) is denied. Entitlement to an effective date prior to September 22, 2009, for the award of service connection for Meniere's disease status post occipital nerve resection with vertigo and balance problems (Meniere's disease) is denied. Entitlement to an effective date prior to September 22, 2009, for the award of service connection for Meniere's disease with hearing loss (a hearing loss disability) is denied. Entitlement to an effective date prior to September 22, 2009, for the award of service connection for Meniere's disease with tinnitus (tinnitus) is denied. FINDINGS OF FACT 1. The November 1982 rating decision that denied the Veteran's original claim of service connection for residuals of a head injury to include a nervous condition is final. 2. Thereafter, the earliest communication that may be reasonably construed as seeking to reopen claims of entitlement to service connection for a TBI and an acquired psychiatric disorder was the Veteran's claim to reopen received by Department of Veterans Affairs (VA) on October 14, 2009. 3. The award of SMC is based, at least in part, on the awards of service connection for a TBI and an acquired psychiatric disorder. 4. The Veteran filed his initial claims for service connection for Meniere's disease, a hearing loss disability, and tinnitus on September 22, 2009. Prior to such date, there is no evidence of formal or informal claims of service connection for Meniere's disease, a hearing loss disability, or tinnitus. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 14, 2009, for the award of service connection for a TBI, have not been met. 38 U.S.C. §§ 5102(b), 5110 (2012); 38 C.F.R. § 3.400 (2021). 2. The criteria for an effective date earlier than October 14, 2009, for the award of service connection for an acquired psychiatric disorder, have not been met. 38 U.S.C. §§ 5102(b), 5110 (2012); 38 C.F.R. § 3.400 (2021). 3. The criteria for an effective date earlier than October 14, 2009, for the award of SMC, have not been met. 38 U.S.C. §§ 5102(b), 5110 (2012); 38 C.F.R. §§ 3.350, 3.400 (2021). 4. The criteria for an effective date prior to September 22, 2009, for the award of service connection for Meniere's disease have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2021). 5. The criteria for an effective date prior to September 22, 2009, for the award of service connection for a hearing loss disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2021). 6. The criteria for an effective date prior to September 22, 2009, for the award of service connection for tinnitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from March 1973 to March 1977 and from November 1977 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision of a VA Regional Office (RO). The Veteran testified at a May 2021 Board virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The Board remanded this matter in August 2016. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Effective Dates The effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall be 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. Appellate review of a rating decision is initiated by a notice of disagreement and completed substantive appeal after a statement of the case (SOC) has been furnished. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3104(b), 3.105(a). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. Under VA regulations, a claim 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The terms claim and application mean 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). Generally, 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 sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). Regulations defining a "claim" were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Prior to March 24, 2015, a claim was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, for the period prior to March 24, 2015, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to an effective date prior to October 14, 2009, for the awards of service connection for a TBI and an acquired psychiatric disorder, and the award of SMC. The Veteran contends that an earlier effective date of July 1982, the date of his original claim of service connection, is warranted for the awards of service connection for a TBI, an acquired psychiatric disorder, Meniere's disease, a hearing loss disability, and tinnitus, as well as the award of SMC. The record reflects that in July 1982, VA received the Veteran's original service connection claim for a head injury. In a November 1982 rating decision, the RO denied the Veteran's original service connection claim for residuals of a head injury, to include a nervous condition, and notified the Veteran of the decision in the same month. The Veteran appealed this decision in a September 1983 notice of disagreement. In October 1983, the RO issued a SOC. However, the Veteran did timely perfect the appeal and the decision became final. Thereafter, on October 14, 2009, the Veteran sought to reopen the claims for service connection for a head injury and an acquired psychiatric disability. In the December 2010 decision on appeal, the RO reopened and granted the Veteran's claims for service connection for a TBI and an acquired psychiatric disability, and granted the claim for SMC that had been raised by the record, and assigned an effective date of October 14, 2009. On review of all evidence, there is no basis under the law to support an effective date earlier than October 14, 2009, for the awards of service connection for a TBI and an acquired psychiatric disorder, and the award of SMC. Notably, the November 1982 rating decision is final, as a substantive appeal was not timely filed after the October 1983 SOC. Thereafter, the earliest possible communication that could be construed as a claim for service connection for any TBI or acquired psychiatric disorder was received by VA on October 14, 2009. Indeed, as noted, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application, which was October 14, 2009. The RO, in its December 2010 rating decision, has therefore already assigned the earliest possible effective date for its grants of the reopened claims. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Based on the procedural history in this case, as discussed above, under the law, October 14, 2009, is the proper effective date for the grants of service connection for the Veteran's TBI and acquired psychiatric disorder, as well as the award of SMC, because it is the date to reopen. There is no basis to assign an effective date earlier than October 14, 2009, for the awards of service connection for the Veteran's TBI and acquired psychiatric disorder, and award of SMC based on those disabilities. Indeed, the Court held, in Sears, 16 Vet. App. at 248 that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." The Board is appreciative of the Veteran's faithful and honorable service to our country; however, for the reasons and bases expressed above, the appeal for an earlier effective date is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. Entitlement to an effective date prior to September 22, 2009, for the awards of service connection for Meniere's disease, a hearing loss disability, and tinnitus. In this case, the RO assigned an effective date of September 22, 2009, for the awards of service connection for Meniere's disease, a hearing loss disability, and tinnitus. The effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall be 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 terms claim and application mean 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). Generally, 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 sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). Regulations defining a "claim" were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Prior to March 24, 2015, a claim was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, for the period prior to March 24, 2015, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). In this case, the RO assigned an effective date of September 22, 2009, for the awards of service connection for Meniere's disease, a hearing loss disability, and tinnitus; this date corresponds with the date the RO received the Veteran's original service connection claims for Meniere's disease, a hearing loss disability, and tinnitus. The Board has reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than September 22, 2009, for the grants of service connection for Meniere's disease, a hearing loss disability, and tinnitus. There is nothing in the record prior to that date which could be construed as a claim for service connection for Meniere's disease, a hearing loss disability, or tinnitus, even under the broadest definition of a claim. As such, the RO has already assigned the earliest possible effective date for its grant of the original claim, which was determined to be September 22, 2009. (Continued on the next page) The Board acknowledges the Veteran's contentions that an earlier effective date should be awarded. However, the evidence reflects, and the Veteran acknowledges, that VA did not receive a claim for disability benefits based on the Veteran's Meniere's disease, a hearing loss disability, and tinnitus until September 22, 2009. There is no legal basis for the Board to grant an effective date for the grants of service connection prior to the date that VA actually received the claim. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). Consequently, there is no legal basis upon which to grant an effective date prior to September 22, 2009, for the grants of service connection for Meniere's disease, a hearing loss disability, and tinnitus. The claim of entitlement to an effective date earlier than September 22, 2009, for the awards of service connection for Meniere's disease, a hearing loss disability, and tinnitus must be denied. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.