Citation Nr: 18153946 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-53 280 DATE: November 29, 2018 ORDER An effective date earlier than December 2, 2014 for the assignment of a 10 percent evaluation for tinnitus is denied. REMANDED Entitlement to a compensable evaluation for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Service connection was granted for tinnitus in a May 2016 rating decision, and a 10 percent evaluation was assigned effective December 2, 2015. An October 2016 rating decision awarded an earlier effective date to December 2, 2014. 2. Because the Veteran’s compensation claim for tinnitus was filed over one year after the effective dates of the liberalizing laws at issue (March 1976 and June 1999), the 10 percent rating for the service-connected tinnitus could not be assigned earlier than one year prior to the date of receipt of his claim on December 2, 2014. CONCLUSION OF LAW The criteria for an effective date earlier than December 2, 2014 for the assignment of a 10 percent evaluation for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1971 to September 1975. This matter is on appeal from May 2016 and October 2016 decisions. Earlier Effective Date-Tinnitus The Veteran contends that an effective date prior to December 2, 2014 is warranted for a 10 percent evaluation for his service-connected tinnitus. He argues that he has been experiencing symptoms of recurrent tinnitus since before his first claim for compensation in 1990. For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999). In pertinent part, an exception to the regulations set forth in 38 C.F.R. § 3.400 provides that if compensation is awarded pursuant to a liberalizing law, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Similarly, an increase based on revised, liberalizing rating criteria cannot be effective prior to the effective date of the changed criteria, unless specifically provided by the revised regulations. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; see also VAOPGCPREC 3-2000 (Apr. 10, 2000) (regarding retroactive application of revised criteria). If a claim is reviewed on the initiative of VA within one year from the effective date of the liberalizing law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. Moreover, if a claim is reviewed, upon the Veteran’s request, more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for only a period of one year prior to the date of receipt of the request for review. 38 U.S.C. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p); McCay v. Brown, 9 Vet. App. 183 (1996), aff’d 106 F.3d 1577 (Fed. Cir. 1997). But in order to be eligible for a retroactive award under § 3.114, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. The provisions of § 3.114 are applicable to original and reopened claims as well as claims for increase. 38 C.F.R. § 3.114(a). Tinnitus is defined as “a noise in the ears such as ringing, buzzing, roaring, or clicking.” Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994)). The Court has specifically held that tinnitus is a type of disorder capable of lay observation and description. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Prior to 1976, Diagnostic Code 6260 for tinnitus only provided a noncompensable (zero percent) disability rating. See 38 C.F.R. § 4.84(b) (1975). This pre-1976 version of Diagnostic Code 6260 also contained a reference to Diagnostic Codes 8045 and 8046, which allowed for assignment of a 10 percent rating for subjective symptoms, such as tinnitus, but which resulted from head trauma or cerebral arteriosclerosis, but without mention of acoustic trauma. Effective on March 10, 1976, Diagnostic Code 6260 for tinnitus was revised to allow for a 10 percent rating for “persistent” tinnitus that was a symptom of head injury, concussion, or acoustic trauma. See 38 C.F.R. § 4.84(b) (1976); see also 41 Fed. Reg. 11291, 11298 (March 10, 1976). The March 1976 change in the regulation amounts to a liberalizing change, as it now provided for a 10 percent compensable rating for “persistent” tinnitus from acoustic trauma. Effective on June 10, 1999, Diagnostic Code 6260 for tinnitus was again revised to allow for a 10 percent rating for “recurrent” tinnitus, with no mention of etiology as a factor. See 38 C.F.R. § 4.87 (2000); see also 64 Fed. Reg. 25202 - 25210 (May 11, 1999). The June 1999 change in the regulation amounts to a liberalizing change, as it now provided for a 10 percent rating for “recurrent” tinnitus without a requirement that it had to be “persistent,” and with no mention of etiology as a factor. Effective on June 13, 2003, Diagnostic Code 6260 for tinnitus was again revised to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Note (2); 68 Fed. Reg. 25822 (May 14, 2003). This, however, does not amount to a liberalizing change, but rather a clarification of existing application of the law. In September 1990, the Veteran filed a claim for hearing loss. In a March 1991 VA examination report, it was noted that the Veteran reported ringing in the ears which “comes and goes.” The audiological evaluation report also indicated that the Veteran reported periodic tinnitus. A July 1991 rating decision awarded service connection for right ear hearing loss. In December 2015, the Veteran filed a claim for an increased rating for hearing loss. In April 2016, the Veteran filed a claim for service connection for tinnitus. In a May 2016 rating decision, the RO granted service connection for tinnitus and a 10 percent evaluation was assigned effective December 2, 2015, the date of the claim for an increased rating for bilateral hearing loss, which was also reasonably construed as a claim for service connection for tinnitus. The Veteran expressed dissatisfaction with the effective date assigned in this rating in a May 2016 notice of disagreement. Thereafter, in an October 2016 rating decision, the RO awarded an earlier effective date to December 2, 2014. It was determined that the assignment of an effective date of December 2, 2014 for tinnitus was warranted based on liberalizing law. In other words, pursuant to 38 C.F.R. § 3.114(a)(3), the RO determined that the 10 percent rating for service-connected tinnitus was authorized for a period of one year prior to the date of receipt of his claim of December 2, 2015. While there was no evidence of persistent tinnitus, the Board acknowledges that the Veteran had recurrent tinnitus due to service on the effective date of the June 10, 1999 liberalizing law and thereafter. 38 C.F.R. § 3.114(a). Nevertheless, the Board finds that, by law, the Veteran is not entitled to an effective date earlier than December 2, 2014, for the assignment of a 10 percent rating for service-connected tinnitus. Although the Board acknowledges the Veteran’s assertions, there is no legal basis for an earlier effective date in this case. The Board must apply 38 C.F.R. § 3.114 to determine the appropriate effective date in this case. In the present case, the Veteran did not file a claim for compensation referable to tinnitus prior to the claim received by the RO on December 2, 2015. More than one year had already passed since the March 1976 and June 1999 liberalizing laws that would have permitted a 10 percent rating for tinnitus. There is also no evidence of record that a tinnitus claim was reviewed on the initiative of VA within one year after the liberalizing legislation and there is also no evidence of record that a tinnitus claim was reviewed on the initiative of VA more than one year after the liberalizing regulation. Simply stated, the claims file does not contain any communication from the Veteran or his representative indicating an intent to seek, or a belief in entitlement to, compensation for tinnitus after the March 1976 and June 1999 liberalizing amendments for tinnitus, but prior to the December 2, 2015 date of his claim or the current effective date of December 2, 2014. 38 C.F.R. §§ 3.1(p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998). The Board is sympathetic to the Veteran’s claim and his particular circumstances, but the Board has no authority to grant claims on an equitable basis and must follow the applicable provisions of the law. 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). For the reasons discussed above, the Board is unable to find any legal basis upon which to assign an earlier effective date for the award of a 10 percent rating for tinnitus prior to December 2, 2014. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Bilateral Hearing Loss Regarding the Veteran’s claim for a compensable evaluation for his bilateral hearing loss, the Board notes that there are no treatment records in the claims file, and that the May 2016 rating decision and October 2016 statement of the case indicate that no evidence of VA treatment was found after a review of VA treatment records. However, in his May 2016 notice of disagreement and October 2016 VA Form 9, the Veteran indicated that he wore hearing aids in both ears. While the RO attempted to ascertain whether the Veteran received VA treatment; there does not appear to be any attempt to obtain any records of outside treatment for the Veteran’s hearing and any records of testing with regarding to the issuance of his hearing aids. A remand is required to allow VA to obtain authorization and request any records of private treatment. The matter is REMANDED for the following action: Contact the Veteran and ask him to identify all non-VA clinicians who have treated him for his service-connected hearing loss, to including the issuance of hearing aids. Have the Veteran complete a VA Form 21-4142 for each identified clinician and/or facility. Make two requests for the authorized records from the identified clinicians and/or facilities, unless it is clear after the first request that a second request would be futile. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel