Citation Nr: 21077080 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-64 446 DATE: December 28, 2021 ORDER An earlier effective date of November 15, 2005 for the grant of service connection for tinnitus is granted. VETERAN'S CONTENTIONS The Veteran seeks an effective date earlier than August 7, 2012 for the grant of service connection for tinnitus. Specifically, he asserts that an earlier effective date some time in 2003 is warranted because he filed a claim at that time and was then diagnosed by VA with tinnitus in 2004. He further contends that an April 2006 rating decision that denied service connection for tinnitus contained clear and unmistakable error (CUE) because it failed to properly consider relevant VA treatment notes supportive of his claim. FINDING OF FACT An April 2006 rating decision that denied service connection for tinnitus contained CUE in that it failed to consider all available VA treatment records in its constructive possession at the time, which included competent evidence of nexus between the Veteran's tinnitus and his military service. CONCLUSION OF LAW The criteria for an earlier effective date of November 15, 2005 for the grant of service connection for tinnitus have been met. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.102, 3.104, 3.105(a), 3.303, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1975 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual tele-hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2021, the Board expanded the issue on appeal to include an allegation of CUE in an April 2006 rating decision and remanded the matter. Earlier Effective Date The Veteran seeks an earlier effective date for the grant of service connection for tinnitus. By way of history, the Veteran filed an initial claim of entitlement to service connection for tinnitus that was received by VA on November 15, 2005. His claim was denied in an April 2006 rating decision. The Veteran did not appeal that decision and it became final. He then filed to reopen his claim for service connection for tinnitus in August 2012, which was subsequently granted with an assigned effective date of August 7, 2012. Generally, the effective date for an award based on an original claim for compensation benefits or a claim reopened after a final denial is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As is relevant here, the Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." However, the Veteran may be awarded an effective date based on his earlier claim if he can show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). In this case, the Board finds that the April 2006 rating decision that denied service connection for tinnitus failed to consider all of the evidence of record, including September 2003 VA treatment records that were associated with the record in July 2019 but were constructively of record at the time of the April 2006 rating decision. See Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020) (holding that evidence is constructively received by VA it was generated by VA or submitted to VA and can reasonably be expected to be connected to the veteran's claim; there is no requirement that the VA adjudicator have any actual knowledge of the evidence for this principle to apply). Those records contained competent evidence of a nexus to service and supported entitlement to service connection for tinnitus. Specifically, September 2003 VA treatment notes that were not obtained or considered by the RO in April 2006 documented the Veteran's competent "complain[t]s of ringing in the ears since 1978 from Artillary [sic]" and "having b/l ringing sensation in both ears, had been in artilary [sic] and since then having ringing problem, getting worse..." The Veteran was competent to report on the onset and course of the ringing in his ears, as tinnitus is an observable symptom. See Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Significantly, in April 2006, there was no medical opinion or other probative evidence to the contrary. Furthermore, the Veteran put the RO on notice of the records in his November 2005 claim as he reported that he had been receiving VA outpatient treatment for his condition. See November 2005 Statement in Support of Claim. Thus, those records could have reasonably been expected to be part of the record. See Monzingo v. Shinseki, 26 Vet. App. 97, 102 (2012). However, such records were not obtained. Thus, the Board finds that the RO's failure to consider the September 2003 VA treatments notes, which supported a nexus between the Veteran's tinnitus and his military service, constituted clear and unmistakable error, particularly as the April 2006 rating decision cited as its reason for denial "an absence of evidence to show a nexus between the claimed condition and active military duty." In sum, the Board finds that the April 2006 rating decision contained CUE insofar as it failed to consider relevant evidence that was constructively of record at the time of the initial denial of service connection for tinnitus and that, as a result of that failure, the Veteran was denied due process of law. 38 C.F.R. § 20.904. As such, the Board finds that after revision of the April 2006 rating decision, an earlier effective date of November 15, 2005, the date of receipt of the initial claim of entitlement to service connection for tinnitus, is warranted. However, the Board finds that at no time is an effective date earlier than November 15, 2005 warranted, as there was no prior pending or unadjudicated claim of entitlement to service connection for tinnitus. Although the Veteran has referenced a 2003 claim, the record does not contain any such claim or even a reference to a 2003 claim. Instead, it seems likely that the Veteran was referring to his 2005 claim. To the extent that the Veteran reported tinnitus since service during VA treatment in September 2003, he did not indicate any intent to file a claim or seek benefits for his condition, such that those treatment notes could constitute an informal claim. 38 C.F.R. §§ 3.155, 3.157 (2005); see also See MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (holding that medical records do not satisfy the regulatory requirements of an informal claim if the condition disclosed in the medical records had not previously been determined to be service connected); Crawford v. Brown, 5 Vet. App. 33 (1993). Additionally, although the Veteran filed an earlier claim for various benefits in September 1998, tinnitus was not included as a condition for which he was seeking benefits. While he did seek benefits for a head injury and concussion in September 1998, he did not report at that time or subsequently that his tinnitus was associated with the head injury, and there was no report of ringing in the ears or tinnitus in the private treatment records submitted in support of the 1998 claims. Thus, there is no legal basis upon which to assign an effective date earlier than November 15, 2005. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.