BVA9404896 DOCKET NO. 92-04 542 ) DATE ) ) ) THE ISSUES 1. Whether the January 1988 rating decision granting zero percent for tinnitus was clearly and unmistakably erroneous. 2. Entitlement to an effective date earlier than May 24, 1991, for a 10 percent evaluation for bilateral tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from August 1969 to August 1971. In October 1992, the Board of Veterans' Appeals (Board) remanded this case to the Waco, Texas, Regional Office (RO) for additional development, which included addressing the intertwined issue of whether the January 1988 rating decision, which assigned a zero percent evaluation for the veteran's tinnitus, was clearly and unmistakably erroneous. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying the issues on appeal because his tinnitus has been constant since service. Therefore, the January 1988 rating decision was clearly and unmistakably erroneous. It is also contended that a zero percent evaluation cannot be assigned for tinnitus because there is no provision in the rating schedule for assigning a zero percent evaluation for tinnitus. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the January 1988 rating action was not clearly and unmistakably erroneous. The preponderance of the evidence is against the veteran's claim for an effective date prior to May 24, 1991, for a 10 percent evaluation for tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary to an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The evidence on file at the time of the January 1988 rating action did not clearly show that the veteran's tinnitus was persistent. 3. During an audiological consultation in November 1987, a history of an old perforation with a buzzing noise on the left was noted; the veteran was assigned a zero percent evaluation for tinnitus by rating decision of January 1988, effective November 20, 1987, which was not timely appealed. 4. A reopened claim for an increased evaluation for tinnitus was received by the RO on May 24, 1991. 5. Complaints of persistent tinnitus were noted on examination in July 1991. CONCLUSIONS OF LAW 1. The unappealed rating decision of January 1988 was not clearly and unmistakably erroneous in assigning a zero percent evaluation for tinnitus. 38 U.S.C.A. §§ 5107(a), 7105 (West 1987); 38 C.F.R. §§ 3.104(a), 3.105(a), Part 4, §§ 4.31, 4.87a, Diagnostic Code 6260 (1988). 2. An effective date prior to May 24, 1991, for a 10 percent evaluation for tinnitus is not warranted. 38 U.S.C.A. §§ 5107(a), 5110(b)(2) (West 1991); 38 C.F.R. § 3.400(o)(2) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, it is not inherently implausible. We also find that the facts relevant to the issues on appeal have been properly developed and that the statutory obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). The veteran's service medical records for May 10, 1970, reveal that he was near an explosion, which caused pain in his right ear and ringing in both ears. When hospitalized later in May 1970, a history of slight tinnitus since the explosion was noted. The veteran was treated for left external otitis. The discharge diagnoses were: severe external otitis on the left and likely traumatic perforation of the left tympanic membrane which had subsequently healed. The veteran noted on his July 1971 discharge medical history report that he did not have any ear trouble, and his ears were noted to be normal on examination in July 1971. No complaints of tinnitus were noted on VA hospitalizations in August 1978, September 1984, or November 1984, and tinnitus was not reported on VA outpatient records from September to November 1984. On VA ear, nose, and throat examination in November 1987, it was noted that the veteran had a history of an old perforation with a buzzing noise in his left ear. Examination of the veteran's ears in November 1987 did not reveal any perforation. The examiner's impression was that the veteran's tinnitus might be related to his past history of noise exposure. A January 1988 rating decision granted service connection for bilateral tinnitus and assigned a zero percent evaluation, effective November 20, 1987. The veteran was notified of this action in February 1988, and he did not timely appeal. An unappealed rating decision of the RO is accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). A 10 percent evaluation is to be assigned for tinnitus when it is persistent as a symptom of head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.87a, Diagnostic Code 6260. In addition, the schedule for rating disabilities provided that in every instance where a no percent evaluation was not provided in a Diagnostic Code, a no percent evaluation would be assigned if a compensable evaluation could not be assigned. See 38 C.F.R. Part 4, § 4.31, as in effect prior to October 6, l993. The United States Court of Veterans Appeals (the Court) recently noted that clear and unmistakable error is the kind of error that "compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet.App. 40, 43 (1993). Therefore, we must determine whether the assignment of a zero percent evaluation for tinnitus in January 1988 should be considered this type of error. Although the veteran did note tinnitus as a result of acoustic trauma in May 1970, it was described as "slight" later in May 1971. Tinnitus was not noted on the veteran's July 1971 discharge medical history and examination reports or on any of the hospital and outpatient treatment reports on file between his discharge in 1971 and ear, nose, and throat examination in November 1987. On system review records for August 1978, the veteran checked that he did not have tinnitus. Finally, we note that it was not specified on ear, nose, and throat examination in November 1987 whether the buzzing noise in the veteran's left ear was constant or intermittent. Since the above findings show that reasonable minds could certainly differ as to whether the veteran's tinnitus was persistent in November 1987, the January 1988 rating action was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.105(a), Part 4, § 4.87a, Diagnostic Code 6260. It is maintained that the 10 percent evaluation for the veteran's bilateral tinnitus should be effective November 20, 1987, because there was evidence on file at that time that his tinnitus, which was caused by acoustic trauma, was persistent. It is also contended that a zero percent evaluation should not have been assigned for tinnitus in November 1987 because there is no provision in the Schedule for Rating Disabilities for a zero percent evaluation for tinnitus. With respect to the assignment of a zero percent evaluation, we note that a zero percent evaluation is warranted for a disability when the minimum schedular evaluation for the disability requires residuals and the required residuals are not shown. 38 C.F.R. § 4.31, as in effect prior to October 6, l993. In a claim for increased disability compensation, the effective date of the award of such increase is the earliest date that the evidence shows increased disability, if the claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The unappealed rating decision in January 1988 assigned a zero percent evaluation for tinnitus. The veteran's reopened claim for an increased evaluation for tinnitus was received by the VA on May 24, 1991. VA examination in July 1991 revealed complaints of constant bilateral tinnitus. Since examination findings in July 1991 confirmed the claimed increase in disability of the veteran's tinnitus, the effective date of the increase is considered the date of receipt of the claim. Consequently, an earlier effective date for a 10 percent evaluation is not warranted. ORDER The January 1988 rating action granting a zero percent evaluation for bilateral tinnitus was not clearly and unmistakably erroneous. An effective date prior to May 24, 1991, for a 10 percent evaluation for bilateral tinnitus is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * EUGENE A. O'NEILL PHILIP E. WRIGHT (CONTINUED ON NEXT PAGE) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) 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.A. § 7266 (West 1991), 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.