Citation Nr: 1759915 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 12-18 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than November 21, 2008 for service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to August 1974. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was denied by the Board in September 2016, but, in August 2017, the Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the matter for further consideration. FINDING OF FACT The Veteran filed a claim for service connection for hearing loss prior to November 21, 2008. This claim was granted effective December 12, 1995. A claim for service connection for tinnitus was within the scope of the Veteran's claim for hearing loss. CONCLUSION OF LAW The criteria for an effective date of December 12, 1995 for the grant of service connection for tinnitus have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Earlier Effective Date The Veteran contends that he is entitled to an earlier effective date for his tinnitus. The weight of the evidence indicates that the criteria for an effective date of December 12, 1995 have been met. The Veteran first filed a claim explicitly seeking service connection for tinnitus on November 21, 2008. The Board notes that the Veteran had filed and was granted a claim for service connection for bilateral hearing loss effective December 12, 1995 (the date his claim for hearing loss was received), but he did not specifically file a claim for tinnitus in conjunction with that claim, or for many years thereafter. Nevertheless in conjunction with his claim for service connection for hearing loss, the Veteran underwent a VA examination in May 1996 at which he reported experiencing occasional tinnitus. As a result the RO should have considered that claim for service connection for tinnitus was within the scope of a claim for service connection for hearing loss. The VA Adjudication Procedures Manual (M21-1) is instructive in this regard: In cases where the claim is phrased as a claim for service connection or increased evaluation for "hearing loss" (or similar wording) but the claimant: 1) makes later contentions specifically about tinnitus, 2) submits evidence of tinnitus or 3) reports tinnitus at a hearing exam or if the examiner diagnoses tinnitus and associates that with the Veteran's service or another service-connected disability, treat the hearing-related claim to include a claim for tinnitus Where service connection is established for tinnitus, use the date of the hearing-related claim for effective date purposes. VA Manual M21-1, III.iv.4.B.4.c, (emphasis added). However, these regulations were amended, and this language added, in 2015, approximately two decades after the Veteran's claim for hearing loss was received. As such, while they would likely be controlling if the Veteran filed a claim for "hearing loss" today, they do not control a claim received approximately 20 years ago. Nevertheless, while the Court of Appeals for Veterans Claims (Court) has not specifically held that tinnitus should be included within a claim for hearing loss, the writing is clearly on the wall, as the Court consistently cites Clemons v. Shinseki, 23 Vet. App. 1 (2009) in non-precedential opinions to link tinnitus to claims for hearing loss. As one non-precedential decision explained: Hearing loss and tinnitus are different conditions marked by differing symptoms and, for VA purposes, they are treated distinctly. Compare 38 C.F.R. § 4.85 (evaluation of hearing impairment), with 38 C.F.R. § 4.87, Diagnostic Code 6260 (tinnitus, recurrent). Hearing loss is marked by a decrease in hearing acuity. See DORLAND'S at 825. The hallmark of tinnitus is ringing or buzzing in the ears. Id. at 1930. As a lay person, however, [the Veteran] could not have been expected to have either "the legal or medical knowledge to narrow the universe of his claim or his current condition" to mere hearing loss, and the evidence developed by VA in support of the claim for benefits for hearing loss clearly produced current evidence of tinnitus. Clemons, 23 Vet.App. at 5. Such a conclusion would particularly hold true twenty plus years ago, when the internet was not widely available and when knowledge of VA benefits was less readily accessible. During the course of processing the Veteran's claim for hearing loss, the Veteran was provided with a VA examination at which he reported experiencing tinnitus. As such, a claim for tinnitus should have been processed, and the Veteran should be assigned the same effective date for the grant of tinnitus as was assigned for the grant of service connection of hearing loss. (CONTINUED ON NEXT PAGE) ORDER An effective date of December 12, 1995 for service connection for tinnitus is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs