Citation Nr: 21021613 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-24 053 DATE: April 13, 2021 ORDER An effective date of October 1, 2009, but no earlier, for the award of service connection for tinnitus is granted. An effective date of October 1, 2009, but no earlier, for the award of service connection for right ear hearing loss is granted. FINDINGS OF FACTS 1. VA received the Veteran’s original claim for service connection for tinnitus and right ear hearing loss on October 1, 2009. 2. Within one year of the issuance of a February 2010 rating decision that initially denied service connection for tinnitus and right ear hearing loss, VA constructively received new and material evidence on December 29, 2010. 3. The Veteran’s original claim for service connection for tinnitus and right ear hearing loss remained pending at the time of the issuance of the November 2013 rating decision that awarded service connection for such disorders. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 1, 2009, but no earlier, for the award of service connection for tinnitus have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date of October 1, 2009, but no earlier, for the award of service connection for right ear hearing loss have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1965 to January 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2013 by the Department of Veterans (VA) Regional Office (RO). A Decision Review Officer (DRO) hearing was scheduled in February 2014; however an Informal Hearing Conference was held in lieu of the requested hearing. A report of the conference is associated with the record. In December 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In June 2016, the case was remanded and, upon its return to the Board, the Veteran testified at another Board hearing before a different Veterans Law Judge in May 2017. Transcripts of both hearings are associated with the record. At the time of the second hearing, the Veteran was informed of his right to have a third hearing with a different Veterans Law Judge who would participate with the other two Veterans Law Judges in deciding his appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). However, he waived this right to a third hearing. In March 2018, the case was again remanded and it now returns for further appellate review. In April 2019 and September 2020, the Veteran requested another Board hearing before a Veterans Law Judge. Quinn v. Wilkie, 31 Vet. App. 284 (2019). Thereafter, in a November 2020 letter, the Board informed the Veteran that the Veterans Law Judge who conducted the May 2017 hearing was no longer employed by the Board. He was offered the opportunity to testify at another Board hearing and, if he elected to do so, to identify the type of hearing he desired. However, in December 2020, he indicated that he did not wish to testify at another Board and requested that his case be decided based on the evidence of record. Consequently, the Board finds that his request for another Board hearing is withdrawn. 1. Entitlement to an effective date prior to July 19, 2013, for the award of service connection for tinnitus. 2. Entitlement to an effective date prior to July 19, 2013, for the award of service connection for right ear hearing loss. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and award of compensation based on an original claim, a claim reopened after 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 application is defined as 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); Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999) (an expressed intent to claim benefits must be in writing to constitute an informal claim; an oral inquiry does not suffice). Prior to March 24, 2015, any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. §§ 3.151, 3.155 (2014). Further, “a veteran’s formal claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality.” Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). In the instant case, VA received the Veteran’s original claim for service connection for tinnitus and right ear hearing loss on October 1, 2009. In this regard, while he previously filed a claim for compensation in May 2009, such application did not mention such disorders. See Sellers, supra. In a February 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for tinnitus and right ear hearing loss on the basis that the evidence did not show a current disability related to the Veteran’s military service. Specifically, the AOJ acknowledged that his service treatment records (STRs) reflected relevant complaints, to include a report of “hearing bad and tinnitus” due to acoustic trauma in February 1965, but his post-service treatment records failed to demonstrate a current diagnosis of tinnitus or right ear hearing loss. Later that month, the Veteran was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. However, on December 29, 2010, within one year of the issuance of the February 2010 rating decision, VA constructively received a VA treatment record reflecting the Veteran’s description of his in-service noise exposure and his report of experiencing intermittent tinnitus for many years. Further, such reflects that audiometric testing revealed mild to moderate sensorineural hearing loss at 3000 to 4000 Hertz in the right ear. In this regard, the Board finds that such evidence is new and material as it was not previously of record and, when considered in connection with the Veteran’s STRs reflecting relevant complaints, raises a reasonable possibility of substantiating the claims such that it would at least trigger VA’s duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). In this regard, 38 C.F.R. § 3.156(b) provides, as relevant, that new and material evidence received prior to the expiration of the appeal period, i.e., within one year of the issuance of a rating decision, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Further, if an AOJ renders a decision, but receives new and material evidence within the time the claimant has to appeal, such decision does not become final until the AOJ acts on the evidence. Lang v. Wilkie, 971 F.3d 1348, 1350 (Fed. Cir. 2020). Evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim. Id. There is no requirement that the VA adjudicator have any actual knowledge of the evidence for this principle to apply. Id. When evidence is received during the appeal period, VA must provide a determination that is directly responsive to the new submission and determine whether it constitutes new and material evidence; until it does so, the issue remains open. Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). In the instant case, the December 29, 2010, VA treatment record, which was constructively of record within a year of the issuance of the February 2010 rating decision, contains new and material evidence pertaining to the Veteran’s claims for service connection for tinnitus and right ear hearing loss, and there is no indication that the AOJ addressed such evidence prior to the issuance of the November 2013 rating decision that awarded service connection for such claimed disorders. Thus, 38 C.F.R. § 3.156(b) is applicable and the February 2010 rating decision is not final. Consequently, the Veteran’s original claims for service connection for tinnitus and right ear hearing loss remained pending at the time of the issuance of the November 2013 rating decision that awarded service connection for tinnitus and right ear hearing loss. Additionally, entitlement is shown to have arisen during his military service as a result of exposure to in-service acoustic trauma in February 1965. See STRs; September 2013 VA examination. Therefore, the Board finds that an effective date of October 1, 2009, but no earlier, for the award of service connection for tinnitus and right ear hearing loss is warranted. Consequently, the Veteran’s appeal is granted to such extent. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.