Citation Nr: 23010643 Decision Date: 02/21/23 Archive Date: 02/21/23 DOCKET NO. 18-50 047 DATE: February 21, 2023 ORDER Entitlement to an effective date earlier than June 9, 2016, for the award of service connection for a bilateral hearing loss disability is denied. Entitlement to an effective date earlier than June 9, 2016, for the award of service connection for tinnitus is denied. FINDINGS OF FACT The Veteran filed his initial claim for entitlement to service connection for a bilateral hearing loss and tinnitus on June 9, 2016; no prior formal or informal claim was filed prior to this date. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 9, 2016, for the award of service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to June 9, 2016, for the award of service connection for tinnitus are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1984 to August 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran asserts that the effective dates for the grant of service connection for hearing loss and tinnitus should be retroactive to the in-service onset of the disabilities. See e.g., February 7, 2017 notice of disagreement, October 25, 2018 VA Form 9, and VA Form 646. In the alternative, the Veteran has also requested that his award be retroactive to April of 1975 or 1967, which is prior to his period of active service. See August 12, 2021 correspondence. The effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If the claim for service connection is received within one year of a veteran's discharge from service, the effective date of an award of service connection will be the day following discharge from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). The regulations governing what constitutes a claim were revised effective March 24, 2015. Prior to March 24, 2015, a "claim" was defined as "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) (2014). An informal claim included "[a]ny communication or action, indicating an intent to apply for one or more benefits . . ." 38 C.F.R. § 3.155(a) (2014). Such an informal claim must identify the benefits 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) (2014). Effective March 24, 2015, a claim is a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). On June 9, 2016 VA received a VA Form 21-526EZ requesting service connection for hearing loss and tinnitus. A December 2016 rating decision granted service connection for bilateral hearing loss and tinnitus with effective dates of June 9, 2016. After thoroughly reviewing the record, the Board finds that prior to June 9, 2016, there were no pending and unadjudicated claims for service connection for a hearing loss disability or tinnitus. The Board acknowledges the Veteran's request that the effective dates for the grant of service connection be retroactive to the onset of the disabilities, which he asserts was prior to and/or during his period of active service. See February 7, 2017 notice of disagreement, October 25, 2018 VA Form 9, VA Form 646, and August 12, 2021 correspondence. Specifically, he requested consideration under VA's "liberalizing laws." See October 25, 2018 VA Form 9. Nevertheless, VA laws and regulations do not allow for an effective date earlier than the day following separation from service. See 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Thus, the Veteran cannot be awarded effective dates during or prior to his period of active service. The Board also acknowledges the Veteran's request that VA obtain his mother's health records and his pre-service health records from 1975 or 1976. While those records have not been obtained, as the effective date for service connection cannot be earlier than the day following separation from service, the pre-service health records cannot substantiate his earlier effective date claims. As such, there is no duty to assist error in not obtaining the referenced records as the claims must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In the absence of claims for service connection for hearing loss or tinnitus prior to June 9, 2016, earlier effective dates are not warranted, and the claims must be denied. See 38 C.F.R. § 3.400. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is against the Veteran's claims and the claim must be denied as a matter of law, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Sabonis, supra; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.