Citation Nr: 18145756 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-25 171 DATE: October 30, 2018 ORDER An effective date of February 29, 2008 for the grant of service connection for tinnitus is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The preponderance of the evidence supports finding that the Veteran’s entitlement to service connection for tinnitus arose on February 29, 2008. CONCLUSION OF LAW The criteria for entitlement to an effective date of February 29, 2008 for the grant of service connection for tinnitus have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.160, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1983 to December 1987 and from January 1990 to August 1990. The Veteran’s service from January 1990 to August 1990 is considered dishonorable for VA purposes. This matter is before the Board as the result of a June 2013 claim for service connection for bilateral hearing loss. An October 2009 Board decision denied service connection for bilateral hearing loss and the Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). The Court remand for the Board to consider whether a claim for entitlement to service connection for tinnitus had been raised by the Veteran, or otherwise reasonably raised by the record in association with the Veteran’s claim for bilateral hearing loss. The issue of service connection for tinnitus was remanded for further development in an August 2011 Board decision. The regional office ultimately granted service connection for tinnitus in a June 2014 rating decision and assigned an effective date of July 11, 2011, the date assigned for receipt of claim, since no formal claim was ever actually filed specifically requesting service connection for tinnitus. The Veteran and his representative assert that he is entitled to an earlier effective date for the grant of service connection for tinnitus, arguing that the Veteran’s claim for service connection was reasonably raised by the record and encompassed within his June 2003 claim for bilateral hearing loss. Specifically, the Veteran and his representative assert that that the treatment records received in association with a June 2003 claim for bilateral hearing loss reasonably raise a claim of tinnitus dating back to the Veteran’s separation from service. Thereby, creating entitlement to an effective date of June 2003, the date of claim for service connection for bilateral hearing loss. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. For a claim of service connection received prior to March 24, 2015, VA regulations state that any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). In June 2003, VA received an application for compensation and/or pension (VA Form 21-526). On the application, the Veteran indicated he was claiming service connection for hearing loss, among other disabilities. The Veteran also stated, in pertinent part, “hearing loss due to years of working around aircraft and small arms while stationed at MCAS New River [and] aboard USS Guam.” The Board notes that VA did not receive any medical documents from the Veteran in conjunction with his application for benefits. Additionally, there was no description of any symptoms such as buzzing or ringing in the ears that might suggest the presence of tinnitus. In October 2009, VA received treatment records from the Virginia Department of Corrections (DOC). Contained in this submission was a February 2008 medical record documenting the Veteran’s complaint that he experienced ringing in both ears with impaired hearing in the right ear, which was first detected in the military. Although the Veteran’s claim identifies hearing loss without more, it cannot be a claim limited only to that diagnosis, but rather must be considered a claim for any hearing disability that may reasonably be encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 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. The Board is cognizant that the Veteran’s communications contemporaneous with and subsequent to his June 2003 application for benefits, failed to include mention or reference to tinnitus or ringing in the ears. 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. The DOC records received October 2009 and a March 2010 Supplemental Statement of the Case are clear indications that VA received evidence of tinnitus during the course of this appeal. Accordingly, under Clemons, VA failed to properly adjudicate the Veteran’s claim as one that included tinnitus. However, as noted, VA regulations provide that the effective date should be the later of the date of claim and the date of entitlement. Here, even if the 2003 claim is found to be the date of claim for tinnitus, there is no evidence in the claims file actually establishing the presence of tinnitus until February 29, 2008. As such, the Board finds that the appropriate effective date for the Veteran’s claim for service connection for tinnitus is February 29, 2008. To this extent, the claim is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel