Citation Nr: 21040967 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-57 504 DATE: July 7, 2021 ORDER Entitlement to an earlier effective date for tinnitus is denied. FINDING OF FACT 1. In a July 1971 rating decision, the Veteran's claim for service connection for tinnitus was denied. The decision became final in July 1972. 2. In a November 1976 rating decision, the Veteran's claim for an increased rating for bilateral hearing loss was denied without mention of tinnitus. The decision became final in November 1977. 3. The correct facts, as known at the time, were before the VA adjudicators in the July 1971 and November 1976 rating decisions and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSION OF LAW 1. The criteria for an effective date earlier than September 25, 2013, for service connection for tinnitus, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 2. The criteria for entitlement to revision of a July 1971 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 3. The criteria for entitlement to revision of a November 1976 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) from an April 2014 rating decision. In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Veteran's claims were previously remanded by the Board in an August 2019 decision in order to allow the AOJ to address the Veteran's CUE claims. The Board finds that the RO has substantially complied with the August 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an earlier effective date for tinnitus The Veteran contended that he should be granted an effective date prior to September 25, 2013 for the grant of service connection for tinnitus. Specifically, the Veteran contends that the effective date of service connection should be the date of his original previously denied claim of entitlement to service connection for tinnitus in July 1971, or, in the alternative, the date of his October 1976 tinnitus diagnosis that was ignored in a November 1976 rating decision. At the April 2019 Board hearing, the Veteran alleged there was a clear and unmistakable error in the November 1976 rating decision for not inferring the issue of tinnitus in the Veteran's claim or in the July 1971 rating decision for not ordering further development of the tinnitus claim. A decision of the RO becomes final if the appellant does not express disagreement or submit new and material evidence within one year. 38 U.S.C. § 7105; 38 C.F.R. § 3.104(a), 3.105(b), 3.156(b), 3.160(d), 20.302. Once a decision of the RO becomes final, the decision can be reversed or amended only when evidence establishes clear and unmistakable error (CUE) was made in the adjudication. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. Tinnitus is rated under Diagnostic Code 6260. At the time of the Veteran's original application and the October 1970 rating decision, tinnitus was noncompensable. 38 C.F.R. § 4.84b, DC 6260 (1970). Effective March 10, 1976, the Rating Schedule was amended with regard to tinnitus permitting a 10 percent evaluation for tinnitus that was persistent as a symptom of head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.84b, DC 6260 (1976); 41 Fed. Reg. 11298 (Mar. 18, 1976). The provisions of the rating criteria governing the evaluation of service-connected tinnitus were again changed, effective June 10, 1999. 64 Fed. Reg. 25208, 25209 (May 11, 1999). Thus, prior to 1999, the tinnitus was required to be the result of a head injury, concussion, or acoustic trauma. The law provides that, when there is a change in regulations, the retroactive reach of the revised regulation under 38 U.S.C. § 5110(g) (1991) can be no earlier than the effective date of that change. See Rhodan v. West, 12 Vet. App. 55 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, because the pertinent criteria did not allow for the assignment of a compensable disability rating for tinnitus prior to March 10, 1976, the Board concludes that there is no basis upon which to grant service connection or to assign an increased evaluation before that date. For the period after March 1976, in August 1976, the Veteran submitted a claim for an increased rating for hearing loss. The Veteran submitted a May 1976 private hearing evaluation indicating constant ringing in ears since service. An October 1976 treatment note diagnosed the Veteran with tinnitus aurium and bilateral hearing loss. The Veteran complained of constant ringing of his ears at the October 1976 VA examination. In November 1976, the RO issued a rating decision denying the Veteran's claim for an increased rating for bilateral hearing loss, but without mention of tinnitus. The Board also notes that the treatment records provided do not appear to allege that the Veteran's tinnitus was a symptom of head injury, concussion, or acoustic trauma In reviewing the evidence submitted during the time between the Veteran's October 1976 rating decision becoming final, and the September 25, 2013 application for service connection for tinnitus, the Board finds that the record does not reflect any communication that could be considered a claim for service connection for tinnitus, formal or informal. The Veteran did not appeal the November 1976 rating decision that denied an increased rating for hearing loss (without mention of tinnitus), and, thus, it became final in November 1977. The earliest document of record following the November 1976 rating decision becoming final pertaining to the Veteran's tinnitus claim was the September 2013 claim for an increased rating for his hearing loss and tinnitus. The Board notes that a claim for entitlement to service connection for tinnitus could be included as part and parcel of a claim for an increased rating for bilateral hearing loss. However, the Board notes the Veteran claimed tinnitus as a separate disability in both his 1970 application for benefits and in his September 25, 2013 application, but not his August 1976 application. The Board acknowledges the Veteran's tinnitus had its onset prior to September 25, 2013. However, the effective date is the later of the date of claim or the date the disability arose. 38 C.F.R. § 3.816 (c)(2). The evidence of record does not contain any statement or other indication that the Veteran demonstrated an intent to apply for VA benefits for tinnitus, or a derivative claim as part and parcel of hearing loss claim, after the issuance of the July 1971 rating decision and prior to September 25, 2013. Additionally, following the August 1976 rating decision, no further communication from the Veteran, to include a claim for service connection for hearing loss or tinnitus, whether formal or informal, was thereafter received until September 25, 2013. Consequently, under applicable law, outlined above, the effective date of the subsequent award can be no earlier than September 25, 2013. The Board finds that the correct facts in the record were before the adjudicator, and the statutory or regulatory provisions in existence at the time were correctly applied; the alleged error was not "undebatable," because the Veteran did not separately make a new claim for service connection for tinnitus. Thus, there are no clear and unmistakable errors in regard to the July 1971 or August 1976 rating decisions. Therefore, the effective date for service-connected tinnitus can be no earlier than the date of receipt of the claim to reopen following a final denial. 38 C.F.R. §§ 3.102, 3.158(a); Sabonis v. West, 6 Vet. App. 426 (1994); 38 U.S.C. § 5107. Thus, the Board finds that September 25, 2013, the date of receipt of the claim, is the appropriate effective date for service connection for tinnitus. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the Board finds that the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, Associate 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.