Citation Nr: 21077511 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 19-06 827 DATE: December 30, 2021 ORDER The issue of entitlement to a compensable rating for bilateral hearing loss is dismissed. The issue of entitlement to a rating in excess of 10 percent for tinnitus is dismissed. An earlier effective date of October 4, 2017, for the grant of service connection for bilateral hearing loss is granted. An effective date earlier than August 31, 2006, for the grant of service connection for a trauma disorder with depressive disorder is denied. REMANDED Entitlement to a rating in excess of 30 percent for a trauma disorder with depressive disorder prior to May 16, 2016, is remanded. Entitlement to a rating in excess of 50 percent for a trauma disorder with depressive disorder since May 16, 2016, is remanded. Entitlement to a compensable rating for radiculopathy of the left lower extremity secondary to the service-connected low back disability prior to May 16, 2016, and in excess of 40 percent thereafter is remanded. Entitlement to a compensable rating for radiculopathy of the right lower extremity secondary to the service-connected low back disability prior to May 2, 2018, and in excess of 40 percent thereafter is remanded. FINDINGS OF FACT 1. On November 19, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the appeals for increased rating for bilateral hearing loss and tinnitus is requested. 2. The May 2016 rating decision that denied service connection for bilateral hearing loss is final. The earliest date that a new claim was filed to reopen the previously denied claim for service connection for bilateral hearing loss was October 4, 2017. 3. The earliest date that a formal or informal claim for a trauma disorder with depressive disorder was received was dated August 31, 2006. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for increased ratings for bilateral hearing loss and tinnitus by the appellant and his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an earlier effective date of October 4, 2017, for the grant of service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an earlier effective date prior to August 31, 2006, for the grant of service connection for trauma disorder with depressive disorder are not met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1970 to July 1973 and from June 1974 to June 1991. As a matter of clarification, the Board notes that the issues of entitlement to an earlier effective date for Concurrent Receipt of Retired and Disability Pay (CRDP) and Combat-Related Special Compensation (CRSC) benefits have not been properly appealed to the Board, and thus they are not before the Board at this time. Also, with regard radiculopathy of the right and left lower extremities, the Board has rephrased those issues as claims for staged ratings, rather than as for an earlier effective date, to assist the Veteran in clear adjudication of these claims. Dismissal 1. The issue of entitlement to a compensable rating for bilateral hearing loss is dismissed. 2. The issue of entitlement to a rating in excess of 10 percent for tinnitus is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant, through his authorized representative, has withdrawn the appeals for increased rating for hearing loss and tinnitus and, hence, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400, 3.400(b)(2). 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 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r). 3. An earlier effective date of October 4, 2017, for the grant of service connection for bilateral hearing loss is granted. The Veteran contends that he is entitled to an effective date earlier than January 31, 2018, for the grant of service connection for bilateral hearing loss. First, as was explained in the February 2021 Board decision, the May 2016 rating decision that denied service connection for bilateral hearing loss is final. Following the issuance of the final May 2016 rating decision, the first formal or informal claim for service connection for bilateral hearing loss was an October 4, 2017, correspondence. This correspondence was a notice of disagreement to the May 2016 rating decision that the Board found to be untimely filed, as it was more than one year following the issuance of the May 2016 rating decision. In order to afford the Veteran with the greatest benefit, the Board interprets the October 4, 2017, correspondence as a new claim for service connection for bilateral hearing loss. Therefore, the Board is granting an earlier effective date for grant of service connection for bilateral hearing loss to October 4, 2017, but no earlier. 4. An effective date earlier than August 31, 2006, for the grant of service connection for a trauma disorder with depressive disorder is denied. The Veteran contends that he is entitled to an effective date earlier than August 31, 2006, for the grant of service connection for a trauma disorder with depressive disorder. However, a review of the record does not reflect any earlier pending claim, either formal or informal, for service connection for a psychiatric disorder. Accordingly, as there is no evidence of an earlier filed claim for this disability, and no other contentions in support of this claim have been submitted, the Board finds that the claim for an earlier effective date for the grant of service connection for a trauma disorder with depressive disorder is denied. REASONS FOR REMAND 1. A rating in excess of 30 percent for a trauma disorder with depressive disorder prior to May 16, 2016, is remanded. 2. A rating in excess of 50 percent for a trauma disorder with depressive disorder since May 16, 2016, is remanded. The Veteran contends that his trauma disorder with depressive disorder is more severe than the currently assigned ratings. The Board notes that currently on remand, development has been taken to obtain a VA examination to assess the current severity of the Veteran's psychiatric disorder. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1305 (c). Therefore, the Board must remand this claim. 3. Entitlement to a compensable rating for radiculopathy of the left lower extremity secondary to the service-connected low back disability prior to May 16, 2016, and in excess of 40 percent thereafter is remanded. 4. Entitlement to a compensable rating for radiculopathy of the right lower extremity secondary to the service-connected low back disability prior to May 2, 2018, and in excess of 40 percent thereafter is remanded. Also currently on remand, the RO is in the process of obtaining a VA examination to assess the Veteran's service-connected lumbar spine disability and associated neurological manifestations. Thus, any decision on these claims would be premature at this time, and therefore a remand is appropriate for this action to be completed and readjudicated in the first instance. The matters are REMANDED for the following action: 1. Readjudicate the claim for increased rating for a trauma disorder with depressive disorder, to include consideration of the June 2021 VA examination. 2. After the requested VA examinations to assess the Veteran's service-connected lumbar spine disability and associated neurological manifestations have been obtained, readjudicate claims for increased ratings for the Veteran's radiculopathy of the right and left lower extremities. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals R. Erdheim, 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.