Citation Nr: 21077205
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 18-12 620
DATE:      December 28, 2021

ORDER

Entitlement to an effective date prior to August 2, 2013, for the grant of service connection for tinnitus is denied.

Entitlement to a higher initial rating for bilateral hearing loss is remanded.

Entitlement to an effective date prior to July 18, 2018, for the 20 percent rating for bilateral hearing loss is remanded.

FINDING OF FACT

On August 2, 2013, more than one year following service, VA received the Veteran's intent to file an original claim for service connection for tinnitus. There is no communication earlier than August 2, 2013, that constitutes a claim for service connection for tinnitus.

CONCLUSION OF LAW

The criteria for an effective date prior to August 2, 2013, for service connection for tinnitus have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from April 1971 to April 1973.

In September 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record.

Earlier Effective Date

The Veteran asserts that he is entitled to an effective date prior to August 2, 2013, for the grant of service connection for tinnitus. 

When a claim is submitted more than one year after service, the effective date shall be the date of the receipt of the claim or the date entitlement arose, whichever is later. U.S.C. § 5110(a); 38 C.F.R. § 3.400.

On August 2, 2013, VA received the Veteran's original service connection claim for tinnitus. There is no communication prior to August 2, 2013, that can be construed as a claim for service connection for tinnitus. Therefore, the proper effective date of August 2, 2013, was afforded since the claim was received more than one year following the Veteran's separation from service.

In conclusion, there is no legal entitlement to an earlier effective date in this case. Consequently, August 2, 2013, is the earliest allowable effective date under the law. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2).

      

REASONS FOR REMAND

The Agency of Original Jurisdiction (AOJ) granted service connection for bilateral hearing loss in an April 2014 rating decision and assigned a noncompensable rating. In October 2014, the Veteran filed a Notice of Disagreement (NOD), seeking a higher initial rating for his bilateral hearing loss. To date, the AOJ has not issued a Statement of the Case in response to the Veteran's October 2014 NOD. Accordingly, a remand is necessary. See 38 C.F.R. §§ 19.20, 19.21, 19.52(a), 20.904(c) (2019); Manlincon v. West, 12 Vet. App. 238 (1999).

Here, the Board finds that the Veteran's claim for an effective date prior to July 18, 2018, for the 20 percent rating for bilateral hearing loss is inextricably intertwined with his higher initial rating claim. Accordingly, such must be remanded as well.

The matters are REMANDED for the following action:

1. Pursuant to 38 C.F.R. § 20.904 (c) (for legacy claims) and the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the AOJ should provide the Veteran with a Statement of the Case (SOC) addressing the issue of entitlement to a higher initial rating for bilateral hearing loss. This SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely Substantive Appeal (VA Form 9) in response thereto.

The AOJ should also advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the SOC, unless the Veteran perfects his appeal of this issue by submitting a timely VA Form 9. In the alternative, the Veteran may elect to statutorily opt-in to the modernized review system under the Appeals Modernization Act (AMA)).

2. Thereafter, readjudicate the Veteran's claim for an effective date prior to July 18, 2018, for the 20 percent rating for bilateral hearing loss.

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Department of Veterans Affairs

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.