Citation Nr: 20004076 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-47 625 DATE: January 16, 2020 ORDER An effective date earlier than April 24, 2014, for the award of service connection for tinnitus, is denied. (The issue of whether there was clear and unmistakable error (CUE) in a July 1979 Board decision denying service connection for tinnitus will be the subject of a separate decision under a different docket number. That decision will be sent to the Veteran and his representative under separate cover.)   FINDING OF FACT A July 1979 Board decision finally denied service connection for tinnitus and a petition to reopen was filed on April 24, 2014. CONCLUSION OF LAW The criteria for an effective date earlier than April 24, 2014, for the award of service connection for tinnitus, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to June 1976. The case is on appeal from a January 2016 rating decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An effective date earlier than April 24, 2014, for the award of service connection for tinnitus. The Veteran contends that an earlier effective date is warranted for the grant of service connection for tinnitus. He wrote in his September 2016 VA Form 9 that he had originally filed a claim of service connection for tinnitus within one year of service. He feels that the claim was broadly inclusive of all hearing issues, not specifically hearing loss. Also, he wrote, he had told a March 1977 VA examiner that he had ringing in his ears from firearms training in 1973. He had also provided a medical opinion from an otolaryngologist. A. Applicable Law The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later, except in limited situations provided in § 20.1304(b)(1) of this chapter. See 38 C.F.R. § 3.400(r). B. Procedural History The procedural history of the case shows that the Veteran filed an original claim in January 1977. He claimed “[h]earing [d]isability – February 1973.” He underwent a VA examination in March 1977, at which time he reported ringing in his ears since 1973. The RO issued a rating decision in April 1977 denying a claim of service connection for a “hearing deficit.” The Veteran filed a notice of disagreement (NOD) in September 1977. In that NOD, he wrote that he “wish[ed] to appeal the decision made by the VA concerning my claim for disability compensation due to the persistant [sic] ringing in my right ear.” He specified that he was not claiming a hearing loss, but only the ringing. In response, the RO issued a rating decision in March 1978 denying service connection for tinnitus. The RO identified the date of claim as the same original claim filed in January 1977. The Veteran then appealed the decision to the Board. In an October 1978 decision, the Board granted service connection for bilateral hearing loss and remanded the claim of service connection for tinnitus. On remand, the RO issued another rating decision in December 1978 denying service connection for tinnitus. A supplemental statement of the case (SSOC) was issued in December 1978. Lastly, the Board issued its July 1979 decision denying service connection for tinnitus. Subsequently, no other correspondence pertaining to tinnitus was received until April 24, 2014. In between the July 1979 Board decision and the April 2014 claim to reopen, although some correspondence is associated with the claims file, it does not pertain to compensation, but instead unrelated issues such as education benefits. C. Discussion In connection with the instant appeal for an earlier effective date, the Veteran’s initial contention is that his original, January 1977 claim encompassed tinnitus. More recently, he wrote in his March 2015 VA Form 9 that he had the ringing in his ears at the time of his original claim, but did not know the clinical term for tinnitus at that time. Regardless of whether entitlement to service connection for tinnitus was raised in the initial January 1977 claim, at the March 1977 VA examination, or in the September 1977 NOD, the claim was thereafter expressly denied in the March 1978 rating decision. This terminated any tinnitus claim pending before the RO. Ultimately, the July 1979 Board decision expressly denied service connection for tinnitus and subsumed the RO decision. This also terminated any tinnitus claim or appeal pending before VA. See Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008). The July 1979 Board’s decision became final when issued. See 38 C.F.R. § 19.145(d) (1979). There was no means to appeal the Board’s decision to any higher tribunal. See Veterans’ Judicial Review Act, Pub.L. No. 100–687, § 402, 102 Stat. 4105, 4122 (1988) (codified at 38 U.S.C. § 7251, et. al). As note above, there was no further tinnitus claim until the claim to reopen that was received on April 24, 2014. Thus, the earliest possible effective date for the Veteran’s reopened claim of service connection for tinnitus is April 24, 2014—the date his claim to reopen was received by VA. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(r). See Juarez v. Peak, 21 Vet. App. 537, 539-540 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d. 1333, 1337 (Fed. Cir. 2005)). In light of the foregoing, the preponderance of the evidence is against and earlier effective date and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, an effective date earlier than April 24, 2014, for the award of service connection for tinnitus is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.