Citation Nr: 21066789 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-37 650 DATE: November 2, 2021 ORDER An effective date of May 30, 1969, but no earlier, for the grant of service connection for tinnitus is granted. FINDING OF FACT The Veteran filed a claim of entitlement to service connection for hearing loss in June 1969, which, when liberally and broadly construed in light of related service treatment records and lay statements of symptoms, included tinnitus; the claim of entitlement to service connection remained pending until subsequently granted by the Regional Office in December 2014. CONCLUSION OF LAW The criteria for assignment of an earlier effective date of May 30, 1969, but no earlier, for the grant of service connection for tinnitus have been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Marine Corps from February 1968 to May 1969. The instant matter is on appeal from a December 2014 rating decision. In November 2021, the Veteran testified before the undersigned in a virtual hearing. This decision was expedited prior to associating a copy of the testimony with the claims file. 1. The claim of entitlement to an earlier effective date for the grant of service connection for tinnitus 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). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). "[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead of assigning an effective date mechanically on the date the Veteran was diagnosed, "all of the facts should be examined to determine the date that [the Veteran's disease] first manifested." See id. at 58. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. A "claim" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The scope of a claim should be construed based on the reasonable expectations of a non-expert, self-represented claimant, and the evidence developed during the claims process. If a Veteran claims service connection for a specific disorder, any disorder reasonably encompassed by the Veteran's claim must be considered. The Veteran may identify the scope of his claim by reference "to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The factors to consider are the Veteran's description of his claim, the symptoms he describes, and all the information he submits or VA obtains in support of the claim. See Brokowski, 23 Vet. App. at 86-87; see also DeLisio 25 Vet. App. at 53-54; Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran filed his original claim of entitlement to service connection for hearing loss in June 1969, within one year of his discharge from service. He reported symptoms of hearing loss related to an explosion in September 1968. Service treatment records reflect loss of hearing and ringing in the ears following this explosion. Entitlement to service connection for hearing loss was subsequently granted with an effective date of May 30, 1969, the day after his discharge from service. Symptoms of ringing in the ears, or tinnitus, were not addressed at that time. The Veteran subsequently filed a claim of entitlement to service connection for tinnitus in August 2014, which was granted in a December 2014 rating decision. The Veteran's initial June 1969 claim specifically identified symptoms of hearing loss bilaterally. Service treatment records reflected hearing loss and ringing in the ears following the in-service explosion. In March 1970, in conjunction with that claim, the Veteran reported symptoms of both hearing loss and ringing in his ears constantly since the initial injury. When looking to a veteran's filing intent, "VA shall afford lenity to a veteran's filings that fail to enumerate precisely the disabilities included within the bounds of a claim." In Murphy v. Wilkie, the Federal Circuit endorsed Clemons's lenity rule and its teaching that a sympathetic reading of the scope of a veteran's claim "is best accomplished by looking to the veteran's reasonable expectations in filing the claim and the evidence developed in processing that claim." 983 F.3d 1313, 1318 (Fed. Cir. 2020) (citing Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008)); see Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996). In this case, the Veteran knew he was suffering from hearing problems and claimed such. He additionally identified ringing in his ears, as did service treatment records made in conjunction with his injury. As he claimed hearing loss generally and referenced symptoms of tinnitus, his claim should be broadly construed to include any diagnoses relating to that body system. In light of this, the Board finds that June 1969 claim was intended to broadly include tinnitus. As the June 1969 claim is considered to have included the claim for tinnitus, the remaining question is which is later the date of claim or the date entitlement arose. As evinced by service treatment records, as well as the Veteran's lay statements, he had symptoms of tinnitus constantly since the in-service injury, to include after his discharge from service. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. Thus, at the time of his June 1969 claim, the Board finds that the Veteran also had a present diagnosis of tinnitus based upon findings in service treatment records and his own lay statements of symptoms. In sum, the evidence supports a finding that entitlement to service connection for tinnitus arose at some point prior to June 1969 and that the Veteran filed a claim that included tinnitus on June 12, 1969, within one year of his discharge from service. Thus, an earlier effective date of May 30, 1969, is warranted for the grant of service connection for tinnitus. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.