Citation Nr: 21068705 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 19-21 965 DATE: November 12, 2021 ORDER An effective date of February 23, 2012, for the award of service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's claim of service connection for tinnitus was within the scope of the February 2012 claim of service connection for hearing loss. 2. The claim of service connection for tinnitus remained unadjudicated until March 2018, when service connection was awarded and an effective date of October 2017 was established. 3. The March 2018 rating decision was reconsidered in a July 2018 rating decision. A sympathetic review of the pleadings dictates that the Veteran have one year from the July 2018 rating decision to submit his notice of disagreement with the effective date, without creating a freestanding earlier effective date claim. CONCLUSION OF LAW The criteria for an effective date of February 23, 2012, for the award of service connection for tinnitus have been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1967 to April 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board acknowledges that the Veteran's attorney attempted to opt this claim into the Rapid Appeals Modernization Program (RAMP) in April 2019, before the matter had been appealed through a Notice of Disagreement (NOD). As was explained in an April 2019 letter from the RO, the Appeals Modernization Act (AMA) and its implementing regulations only permitted claims that had been appealed through a NOD, or which were at one of several subsequent stages of the appeal process, to opt into RAMP or, after February 15, 2019, the AMA system. The Veteran submitted a NOD in May 2019, and a legacy system Form 9 in July 2019. Accordingly, the Board finds that the Veteran chose to continue his claim through the legacy appeal process and has adjudicated the claim as such. 1. An earlier effective date for the award of service connection for tinnitus. The Veteran asserts that the RO's assignment of an effective date for the grant of service connection for tinnitus in March 2018 was based on clear and unmistakable error (CUE), and that he should be awarded service connection dating back to his original claim for bilateral hearing loss based on his September 14, 2013 VA examination. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Prior to March 24, 2015, a claim was "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). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. Additionally, there is no such procedure as a freestanding challenge to the finality of a VA decision. DiCarlo v. Nicholson, 20 Vet. App. 52 (2006). After a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Furthermore, a rating decision becomes final if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.302 (2017). Previous determinations that are final and binding, including decisions of service connection and degree of disability are accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(b), 3.105(a). If an earlier decision contained CUE, the prior decision must be reversed or revised. 38 C.F.R. § 3.105(a). The decision constituting reversal or revision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior, reversed decision. 38 C.F.R. §§ 3.105(a); 3.400(k). The procedural history of this case is relevant. On February 23, 2012, the Veteran submitted a VA Form 21-526 which, in relevant part, claimed entitlement to service connection for bilateral hearing loss based on exposure to loud artillery and machinery noise without the use of hearing protection, while stationed in South Korea. The statement did not describe any specific symptoms. It described the section as his "acoustical statement" and indicated he sought service connection for hearing loss. The Veteran did not submit any subsequent lay statements expanding on his associated symptoms, but did provide additional information in a September 14, 2013 VA examination. In the examination, the Veteran described a history of military noise exposure related to large trucks and rockets and/or artillery while stationed in South Korea. The Veteran reported working as a consultant following the military, having little occupational or recreational noise exposure, and generally using hearing protection when he was around loud noises. The examiner diagnosed bilateral tinnitus based on a description of experiencing what "sounds like cicadas." The examiner also gave a positive nexus opinion because the "Veteran's oral report of noise exposure is consistent with noise induced tinnitus." An October 2013 addendum opinion provided a negative nexus opinion, noting that there was a normal audiological examination during service, that tinnitus was common in range of loss noted in the prior examination, and 30 percent of the population in his age range has tinnitus. An October 2013 rating decision denied the Veteran's claim for service connection for bilateral hearing loss, but did not adjudicate or reference tinnitus. After the receipt of new evidence, a September 2014 rating decision confirmed the denial of service connection for hearing loss and did not adjudicate tinnitus. The Veteran filed an Intent to File on October 26, 2017 (the current effective date for the grant of service connection for tinnitus), followed by a formal claim for service connection for bilateral hearing loss and tinnitus, received on January 19, 2018. The Veteran was granted service connection for tinnitus in a March 2018 rating decision, following a positive nexus opinion in a March 2018 VA examination. The March 2018 decision awarded the currently assigned effective date. In June 2018 the Veteran's attorney submitted a claim alleging there was CUE in the assignment of the effective date for the grant of service connection for tinnitus in the March 2018 rating decision. The RO considered this to be a request for reconsideration of the March 2018 rating decision regarding the effective date assigned, as well as an allegation of CUE. See June 2019 Statement of the Case (SOC) (Adjudicative Actions section notes June 12, 2018 request for reconsideration). In a July 2018 rating decision, the RO denied an earlier effective date, noting that the March 2018 rating decision was not yet final, and, thus, no CUE claim was appropriate. The Veteran filed a May 2019 notice of disagreement (NOD) with the July 2018 rating decision. In June 2019, the SOC was issued, and the Veteran perfected the appeal. The Board interprets the Veteran's June 2018 CUE motion filed on a Supplemental Claim form in the most Veteran friendly manner possible, and therefore finds the March 2018 rating decision was not final. The Board notes that the Veteran's attorney needed simply to file a notice of disagreement to the March 2018 rating decision to avoid any ambiguity. Nonetheless, the AOJ the AOJ interpreted the Veteran's June 2018 CUE claim as a request for reconsideration. The Board interprets the July 2018 rating decision denying the CUE as an extension of the March 2018 rating decision as to the effective date of tinnitus. Therefore, in fairness to the Veteran, he should have been given one year from the July 2018 rating decision to submit an NOD and not run afoul of Rudd, supra. He did so with the May 2019 NOD. Accordingly, the Board reviews the issue of the effective date on its merits. Although the RO has no duty to read the mind of the claimant, VA should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, at the September 2013 VA examination for hearing loss and tinnitus, the evidence of tinnitus was raised, and the examiner opined as to tinnitus's relation to service. Accordingly, the evidence developed in processing the claim for hearing loss shows the closely related disability of tinnitus was raised. VA's practice at the time of the July 2018 rating decision as stated by the VA Adjudication Procedures Manual, M21-1, instructs that, when developing a claim for tinnitus and an examination report diagnoses tinnitus and relates it to service, the tinnitus claim is considered within the scope of the hearing loss claim. M21-1, pt.III, subpt. iv, ch. 5, § C.1.f. (historical, filename 5-18-18_Key Changes_M21-1III_iv_5_SecC). As the claim for tinnitus was within the scope of the claim for hearing loss in the February 2012 claim, it had remained unadjudicated until March 2018. Thus, the appeal period dates back to the original claim, February 2012. Accordingly, the Board finds that the proper effective date for the award of service connection for tinnitus is February 23, 2012. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.