Citation Nr: 21028013 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-17 848 DATE: May 10, 2021 ORDER Entitlement to an effective date prior to December 31, 2015, for the award of a 10 percent evaluation for bilateral hearing loss is denied. Entitlement to an effective date prior to December 31, 2015, for the award of entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. Neither an earlier claim for entitlement to an increased rating for bilateral hearing loss, nor evidence of a factually ascertainable increase in disability occurred so as to merit entitlement to an increased evaluation for bilateral hearing loss during the year preceding the December 31, 2015 claim is contained in the record. 2. There is no earlier petition to reopen the claim of entitlement to service connection for tinnitus prior to the December 31, 2015 claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to December 31, 2015, for the award of a 10 percent evaluation for bilateral hearing loss have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400, 4.87, Diagnostic Code 6100 (2020). 2. The criteria for entitlement to an effective date prior to December 31, 2015, for the award of entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active service from July 1960 to May 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision rendered April 2016. In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The matters of entitlement to effective dates prior to December 31, 2015, for the award of service connection for tinnitus as well as for the award of a 10 percent evaluation for bilateral hearing loss on the basis of clear and unmistakable error (CUE) in the September 2012 rating decision have been raised in assertions from the Veteran. Those matters are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action, to include sending a standardized claims form to the Veteran. 1. Entitlement to an effective date prior to December 31, 2015, for the award of a 10 percent evaluation for bilateral hearing loss The Veteran seeks entitlement to an effective date prior to December 31, 2015, for the award of a 10 percent evaluation for bilateral hearing loss. The Board notes that, 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. 38 C.F.R. §§ 3.151, 3.155. Under 38 C.F.R. § 3.151, a specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. The amended regulations apply only to claims filed on or after March 24, 2015. Thus, claims filed after March 24, 2015, such as in this appeal, the standardized form is required. Although informal claims are no longer recognized, a claimant may submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within one year of receipt of the intent to file a claim. An intent to file a claim must identify the general benefit (e.g., compensation, pension), but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based. 38 C.F.R. § 3.155(b). The general rule is that the effective date of an award for an increased evaluation shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2020). An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the one-year period preceding the date of receipt of a claim for increased compensation. In that situation, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). The Veteran originally filed a claim for entitlement to service connection for bilateral hearing loss in July 2011. In a September 2012 rating decision, the AOJ granted entitlement to service connection for bilateral hearing loss, assigning an initial noncompensable evaluation, effective July 14, 2011, under Diagnostic Code 6100 based on findings from a September 2012 VA examination report. The Veteran did not initiate a timely appeal for that matter. There is also no indication that additional evidence was received between September 2012 and September 2013, which would have necessitated reconsideration of the issue on appeal. 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the September 2012 rating decision is final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran submitted an intent to file a claim on December 31, 2015 and filed an increased rating claim for bilateral hearing loss shortly thereafter in January 2016. Since VA received a complete increased rating claim for bilateral hearing loss within one year of receipt of the intent to file a claim, the date of receipt of the Veteran's new claim is December 31, 2015. In an April 2016 rating decision, the AOJ granted a 10 percent evaluation for bilateral hearing loss, effective December 31, 2015. The Board has determined that entitlement to an effective date prior to December 31, 2015, for the award of a 10 percent evaluation for bilateral hearing loss is not warranted. There is no evidence of any earlier pending claim for an increased rating for the service-connected bilateral hearing loss between the final September 2012 rating decision and the Veteran's intent to file received on December 31, 2015. The Board also finds no factually ascertainable evidence demonstrating an increased rating for the Veteran's service-connected bilateral hearing loss was received during the year prior to December 31, 2015, as there was no evidence pertaining the Veteran's bilateral hearing loss added to the record in the year prior to the December 31, 2015 claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The Board acknowledges the Veteran's May 2016 submission of a private audiogram dated in April 2010. However, this evidence was not associated with the record prior to December 31, 2015. It is also cognizant of his repeated assertions that the prior September 2012 VA audio examination was not adequate. As the September 2012 rating decision which established the effective date for the award a noncompensable rating for bilateral hearing loss became final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). Here, the Veteran appears to be asserting that there was CUE in the September 2012 rating decision. If so, he must file a claim for entitlement to an effective date prior to December 31, 2015, for the award of a 10 percent evaluation for bilateral hearing loss on the basis of CUE in the September 2012 rating decision on a standardized claims form. As the preponderance of the evidence is against the assignment of any earlier effective date prior to December 31, 2015, for the award of entitlement to a 10 percent evaluation for bilateral hearing loss, the doctrine of reasonable doubt is not for application. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an effective date prior to December 31, 2015, for the award of entitlement to service connection for tinnitus The Veteran has asserted that he was entitled to an effective date prior to December 31, 2015, for the award of service connection for tinnitus. He has repeatedly contended that his benefits should go back to July 2011 when his initial claim for service connection was filed. The effective date for an award of disability compensation for reopened claims shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(r). The United States Court of Appeals for Veterans Claims (Court) has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peak, 21 Vet. App. 537, 539-540 (2008). In July 2011, the Veteran originally filed a claim for entitlement to service connection for tinnitus. In a September 2012 rating decision, the AOJ denied entitlement to service connection for tinnitus. The AOJ indicated that service treatment records did not contain complaints, treatment, or diagnosis for tinnitus and there was no continuity of symptoms from service to the present. It was noted that a September 2012 VA examiner opined that it was less likely than not that tinnitus was caused by military service, as he reported the onset of his tinnitus was approximately one year ago, 49 years following separation from service. Thereafter, the Veteran did not initiate a timely appeal for that matter. There is also no indication that additional evidence was received between September 2012 and September 2013, which would have necessitated reconsideration of the issue on appeal. 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the September 2012 rating decision is final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran submitted an intent to file a claim on December 31, 2015 and filed a petition to reopen his claim of entitlement to service connection for tinnitus shortly thereafter in January 2016. In an April 2016 rating decision, the AOJ granted entitlement to service connection for tinnitus and assigned a 10 percent evaluation, effective December 31, 2015. The Board has determined that entitlement to an effective date prior to December 31, 2015, for the award of service connection for tinnitus is not warranted. There is no evidence of any earlier pending petition to reopen the service connection claim for tinnitus between the final September 2012 rating decision and the Veteran's intent to file received on December 31, 2015. In addition, the effective date for the award of entitlement to service connection for tinnitus cannot be earlier than the date of the claim to reopen on December 31, 2015. The Board acknowledges the Veteran's May 2016 submission of a private audiogram dated in April 2010. However, this evidence was not associated with the record prior to December 31, 2015. It is also cognizant of his repeated assertions that a prior September 2012 VA audio examination was not adequate. As the September 2012 rating decision which denied entitlement to service connection for tinnitus became final, the only way that such a decision can be revised is if it contains CUE. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). Here, the Veteran appears to be asserting that there was CUE in the September 2012 rating decision. If so, he must file a claim for entitlement to an effective date prior to December 31, 2015, for the award of entitlement to service connection for tinnitus on the basis of CUE in the September 2012 rating decision on a standardized claims form. Based on the foregoing, the assignment of an effective date earlier than December 31, 2015, for the award of entitlement to service connection for tinnitus is legally precluded. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2020). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.