Citation Nr: 21073840 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 20-12 480 DATE: December 10, 2021 ORDER An effective date earlier than October 20, 2017 for the award of a 30 percent rating for Meniere's disease with vertigo, tinnitus, and bilateral hearing loss is denied. FINDINGS OF FACT 1. In a September 2006 rating decision, the Regional Office (RO) awarded service connection for Meniere's disease with tinnitus and assigned a 10 percent rating from January 20, 2006. Additionally, the rating decision continued the Veteran's 10 percent rating for Meniere's disease with vertigo. He was provided notice of this decision and did not appeal or submit new and material evidence within one year of this decision; therefore, the September 2006 rating decision is final. 2. VA received the Veteran's formal claim for entitlement to increased ratings for tinnitus and Meniere's disease with vertigo on October 20, 2017. 3. There were no other pending, unadjudicated formal or informal claims for increased ratings for tinnitus or Meniere's disease with vertigo prior to October 20, 2017, and it is not factually ascertainable that the Veteran met the criteria for higher ratings within one year prior to October 20, 2017. CONCLUSION OF LAW The criteria for an effective date earlier than October 20, 2017 for the award of a 30 percent rating for Meniere's disease with vertigo, tinnitus, and bilateral hearing loss have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from April 1962 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office. In October 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Earlier Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after a final disallowance, or a claim for increase, will 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. An exception to the above rule applies in certain circumstances for increased compensation claims. The effective date of an award for an increased rating is the earliest date when it is factually ascertainable that an increase in disability occurred, if the application for an increase is received within one year from the date of increase. Otherwise, the effective date is the date of receipt of the claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). A "claim" is defined in the VA regulations as "a written communication requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). Pursuant to 38 C.F.R. § 3.155(d), a complete claim is required for all types of claims, and will generally be considered filed as of the date it was received by VA for an evaluation of award of benefits. If VA receives a complete claim within 1 year of the filing of an intent to file a claim that meets the requirements of 38 C.F.R. § 3.155(b), it will be considered filed as of the date of receipt of the intent to file a claim. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Prior to the March 24, 2015 amendment, VA accepted both formal and informal claims. Entitlement to an effective date earlier than October 20, 2017 for the award of a 30 percent rating for Meniere's disease with vertigo, tinnitus, and bilateral hearing loss. The Veteran is currently assigned an effective date of October 20, 2017 for the award of a 30 percent rating for Meniere's disease with vertigo, tinnitus, and bilateral hearing loss; he seeks an earlier effective date. Procedurally, the Veteran was awarded service connection for Meniere's disease in a September 1986 Board decision. In September 1986, the Regional Office (RO) effectuated the Board's decision by issuing a rating decision that assigned a 10 percent rating from August 23, 1986 for Meniere's disease. In January 2006, the Veteran submitted correspondence wherein he requested an increased rating for his service-connected Meniere's disease. In a September 2006 rating decision, the RO continued the 10 percent disability rating for the Veteran's Meniere's disease with vertigo and awarded a separate 10 percent rating for Meniere's disease with tinnitus, with an effective date of January 20, 2006. The Veteran did not appeal this decision and it became final. Following the September 2006 rating decision, the Veteran filed an October 2017, VA form 21-52EZ, Fully Developed Claim, seeking an increased rating for tinnitus, and Meniere's disease with vertigo. Thereafter, the RO issued a March 2018 rating decision, which increased the Veteran's disability rating for Meniere's disease with vertigo, tinnitus, and bilateral hearing loss to 30 percent with an effective date of October 20, 2017. Additionally, the rating decision determined that a clear and unmistakable error (CUE) was found in the September 2006 rating decision. Specifically, the rating decision maintained that a CUE was made in granting separate evaluations for Meniere's disease with tinnitus and Meniere's disease with vertigo. Based on this finding, the RO discontinued the separate evaluation for Meniere's disease with tinnitus effective October 20, 2017 and combined the symptoms of vertigo, tinnitus, and hearing loss into a single evaluation under Diagnostic Code (DC) 6205. See March 2018 Rating Decision. Following the March 2018 rating decision, the Veteran filed an April 2018 Notice of Disagreement (NOD), wherein he requested an earlier effective date for the award of a 30 percent rating for Meniere's disease with vertigo, tinnitus, and bilateral hearing loss. Specifically, the Veteran asserted that an effective date of September 14, 2006, the date of the rating decision which found that a CUE was made in granting separate ratings for Meniere's disease with vertigo and Meniere's disease with tinnitus, should be awarded for the 30 percent rating. See April 2018 NOD. After a thorough review of the record, the Board finds that following the September 2006 rating decision, the earliest recorded expression of intent by the Veteran seeking a higher disability rating for Meniere's disease was received by VA on October 20, 2017. Under governing law (with exceptions, none of which here are applicable) the effective date of an award based on a reopened claim following a prior final denial of the claim cannot be earlier than the date of receipt of the claim to reopen. There is no statutory authority that would allow VA to grant the Veteran an effective date earlier than October 20, 2017, for the award of a 30 percent rating for Meniere's disease with vertigo, tinnitus, and bilateral hearing loss under the circumstances in this case, or for the reason he has alleged. Moreover, the Board notes that at the time of the September 2006 rating decision, the Veteran did not meet the criteria for a 30 percent rating under DC 6205. Per VA regulations, Meniere's syndrome should be rated under the criteria indicated in DC 6205, or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. However, the rating criteria specifically instructs that an evaluation for hearing impairment, tinnitus, or vertigo should not be combined with a rating under DC 6205. Under DC 6205, a 30 percent rating is warranted where the evidence shows hearing impairment with vertigo less than once a month, with or without tinnitus. This is notable, as at the time of the September 2006 rating decision, the Veteran did not meet the VA requirements for a hearing loss disability under 38 C.F.R. § 3.385. In this regard, the Veteran underwent a March 2006 VA examination to assess his complaints of dizziness and fullness and tinnitus in his ears. An audiogram was performed, which found that the Veteran's hearing was within normal limits, with the exception of a mild sensorineural hearing loss at 2000 Hz in the right ear; however, the results did not show that the Veteran met the VA criteria for hearing loss. See March 2006 VA Examination. Additionally, during the Veteran's October 2021 Board hearing, he testified that he experienced tinnitus and vertigo since 1984; however, he maintained that "the hearing loss didn't come about in 06'." See October 2021 Hearing Transcript. Therefore, as the Veteran did not have hearing loss at the time of the September 2006 rating decision, he did not meet the criteria for a 30 percent rating under DC 6205, which is the lowest schedular rating for Meniere's disease. Thus, the RO properly awarded separate rating for Meniere's disease with tinnitus and Meniere's disease with vertigo. Furthermore, the Board notes that, as the Veteran did not meet the criteria for the lowest schedular rating under DC 6205 for Meniere's disease, he benefited by receiving separate 10 percent ratings for Meniere's disease with tinnitus and Meniere's disease with vertigo. Thus, in spite of the Veteran's contention above, the Board finds that an effective date earlier than October 20, 2017, is not warranted. The Board has carefully reviewed the evidence of record and has found no formal or informal communication prior to October 20, 2017 seeking a higher disability rating for Meniere's disease. Moreover, the Veteran has not identified any records which he believes to be an informal claim. Furthermore, as indicated above, the Veteran seeks an effective date of September 14, 2006 for the award of a 30 percent rating for Meniere's disease; however, at the time of the September 2006 rating decision, he did not meet the criteria for a 30 percent rating under DC 6205. Accordingly, the Veteran's appeal seeking an earlier effective date for the award of a 30 percent rating for Meniere's disease with vertigo, tinnitus, and bilateral hearing loss is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.