92 Decision Citation: BVA 92-17066 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-04 582 ) DATE ) ) ) THE ISSUE Entitlement to an effective date earlier than March 19, 1989, for the grant of service connection for tinnitus, left ear. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Paul J. Somelofske, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (the Board) on appeal from rating determinations of the New York, New York, Regional Office (RO). The veteran served on active duty from May 1968 to May 1970. He acts as his own representative in this matter. In a rating determination dated in February 1991, the veteran was granted service connection for tinnitus, left ear, and was assigned a 10 percent evaluation, effective from March 19, 1989. He was notified of this decision by a letter dated in April 1991. The notice of disagreement as to the effective date was received in July 1991. The statement of the case was issued in September 1991, and the substantive appeal was received later that month. In January 1992, the veteran appeared and offered testimony at a hearing before the RO. The hearing officer's decision and a supplemental statement of the case were issued later that month. The case was docketed at the Board in April 1992, and it is now ready for appellate consideration. Statements received from the veteran indicate that he is also seeking an effective date earlier than March 19, 1989, for the 10 percent evaluation for his service-connected tinnitus. In light of the Board's decision herein on the issue of an earlier effective date for the grant of service-connection for tinnitus, the issue of an earlier effective date for the 10 percent evaluation for tinnitus is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error by not granting an effective date earlier than March 19, 1989, for the grant of service connection for tinnitus, left ear. He asserts that tinnitus was first noted when he filed a claim in June 1969, but that tinnitus, then, was not considered a disability. He maintains that since he was on record as having had tinnitus, he should have been notified that he could file a claim when tinnitus was recognized as a disability in 1976. He states that the correct effective date should be in June 1969, when tinnitus was first clinically documented, or at least in March 1976, when tinnitus was first recognized as a disability. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C. § 7104 (1992), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence weighs in favor of the veteran's claim for an effective date earlier than March 19, 1989, for the grant of service connection for tinnitus, left ear. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. A claim for service connection for tinnitus, left ear, was received on February 16, 1973; constant tinnitus is shown to have been present at that time. CONCLUSION OF LAW The proper effective date for the grant of service connection for tinnitus, left ear, is February 16, 1973. 38 U.S.C. § 5107(a) (1992); 38 C.F.R. § 3.400 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has carefully considered the evidence compiled by and on behalf of the veteran. We find that the veteran's claim is "well grounded" within the meaning of 38 U.S.C. § 5107(a) (1992). That is, the veteran has presented a claim which is plausible. We are also satisfied that all relevant facts have been adequately developed; no further assistance to the veteran in developing the facts pertinent to his claim is required to comply with the duty to assist the veteran as mandated by 38 U.S.C. § 5107(a). The veteran's service medical records indicate that, in June 1969, the veteran complained of tinnitus following the firing of an M-16. A July 1969 medical record indicates that the veteran complained of constant tinnitus; the examiner noted that "no treatment was possible for tinnitus." A private doctor's report, dated in December 1972, reveals that the veteran had "high pitch tinnitus for a long while, this is in the left ear associated with the activity in military service." On February 16, 1973, the veteran's claim for service connection for hearing loss and ringing in his left ear was received stating that he had loss of hearing and ringing in his left ear in service and after his separation from active duty. A Department of Veterans Affairs (VA) examination report, dated in May 1973, indicates that the veteran had high tone hearing loss and constant ringing in his left ear. A rating decision, dated in May 1973, granted service connection for defective hearing, left ear. On March 19, 1990, the veteran applied to have his "service related hearing loss" re-evaluated. A rating decision dated in February 1991 granted the veteran service connection for constant tinnitus, left ear, effective from March 19, 1989, one year prior to the date of his application, under the provisions of 38 C.F.R. § 3.114. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The veteran's February 16, 1973, claim was clearly a claim for service connection for tinnitus, left ear. As established from the veteran's service medical records, the December 1972 private doctor's report and the May 1973 VA examination report, entitlement to service connection for constant tinnitus, left ear, was shown as of the date of receipt of the veteran's claim. Therefore, the proper effective date for service connection for tinnitus, left ear, is February 16, 1973, the date of the veteran's claim. Id. We note that the veteran states that he "made a claim for tinnitus in 1969 when I had tinnitus develop." The veteran was still in the service, however, in 1969; the first claim of record is the veteran's February 16, 1973, claim. ORDER An effective date of February 16, 1973, for the grant of service connection for tinnitus, left ear, is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 JANE E. SHARP WILLIAM J. REDDY * *38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.