Citation Nr: 0716974 Decision Date: 06/07/07 Archive Date: 06/18/07 DOCKET NO. 05-07 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an effective date earlier than March 23, 2004, for the award of service connection for tinnitus. 2. Entitlement to an effective date earlier than March 23, 2004, for the award of service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The record indicates that the veteran served on active duty from March 1963 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDING OF FACT The veteran's original claim for service connection for tinnitus and hearing loss was received on March 23, 2004. CONCLUSIONS OF LAW 1. The criteria for award of service connection for tinnitus earlier than March 23, 2004, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2006); 38 C.F.R. § 3.400(b)(2)(i) (2006). 2. The criteria for award of service connection for bilateral hearing loss earlier than March 23, 2004, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2006); 38 C.F.R. § 3.400(b)(2)(i) (2006). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice shall be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). In the present case, the Board notes that the veteran was apprised of VA's duty to both notify and assist by way of VCAA correspondence dated in March 2004. Specifically, the notification informed him of what the evidence must show to establish entitlement to service connection, what additional evidence was needed from the veteran, and what information VA was responsible for obtaining on the veteran's behalf. Additionally, the RO requested that the veteran submit any evidence or information in his possession pertaining to his claim. The Board notes that the VCAA notification letter did not include the criteria for assigning disability ratings or for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). However, once a decision awarding service connection, a disability rating, and an effective date has been made, as is the case here, VCAA notice has served its purpose, and its application is no longer required because the claim has already been substantiated. Dingess, 19 Vet. App. at 490. In any event, the Board notes that the veteran was, in fact, apprised of the criteria for award of an effective date in the statement of the case (SOC), issued in February 2005. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2006). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2006). In the present case, the Board finds that the duty to assist has been fulfilled with respect to the veteran's earlier effective date claims. The RO obtained the veteran's service medical records (SMRs), VA and private medical records, and secured an examination in furtherance of his claim. VA has no duty to inform or assist that was unmet. The veteran was awarded service connection for tinnitus and bilateral hearing loss in a rating decision dated in August 2004, effective from March 23, 2004. The veteran contends that the effective date for both awards should be July 30, 1966, the date of his release from active duty. The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). In his substantive appeal, (VA Form 9), dated in March 2005, the veteran states that he has experienced ringing in his ears ever since he was on active duty. He contends that had he been afforded a proper hearing test upon discharge, his problems would have been identified at that time, he would have filed a claim, and disability benefits would have been granted from July 1966. However, there was no hearing exam performed during the veteran's separation exam and the veteran did not file a claim in 1966. Here, the Board notes that although the veteran was released from active duty in July 1966, he did not file a claim for service connection for tinnitus or hearing loss until March 2004. Because the veteran's claims for service connection were not received within one year of separation from service, the effective date can only be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110. The veteran's claims for service connection for tinnitus and hearing loss were received on March 23, 2004. Entitlement to service connection was not shown until the audiologic examination conducted in July 2004. Even if, arguendo, it were to be shown that entitlement arose at the time of separation from service, the effective date by law, could not be any earlier than the date of the claim--March 23, 2004--because that would be the later of the two dates. ORDER Entitlement to an effective date earlier than March 23, 2004, for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than March 23, 2004, for the grant of service connection for bilateral hearing loss is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs