Citation Nr: 22017584 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 20-03 425 Date: March 25, 2022 ORDER Entitlement to an effective date of February 23, 2018, but no earlier, for the grant of service connection for tinnitus is granted. Entitlement to an effective date earlier than September 24, 2018, for a disability rating of 40 percent for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. The earliest document in the claims file that may be accepted as a claim for entitlement to service connection for tinnitus is a VA Form 21-526EZ received from the Veteran on February 23, 2018. 2. Prior to September 24, 2018, the date of the Veteran's call with the AOJ, it was not factually ascertainable that the Veteran's bilateral hearing loss was manifested by symptoms that more closely approximated the criteria for an increased rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date of February 23, 2018, for the award of service connection for tinnitus have been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.155, 3.400. 2. The criteria for entitlement to an earlier effective date prior to September 24, 2018, for the award of a 40 percent disability rating for service-connected bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to August 1965 in the United States Navy. Effective Date 1. Entitlement to an earlier effective date, earlier than September 24, 2018, for service connection for tinnitus. In a July 2018 rating decision, the Agency of Original Jurisdiction (AOJ) initially denied the Veteran's claim for entitlement to service connection for tinnitus. The Veteran did not file a formal Notice of Disagreement, but instead called the AOJ in September 2018 to dispute the Rating Decision and submit further evidence. In October 2018 the AOJ scheduled the Veteran for a VA examination for tinnitus and a November 2018 rating decision granted service connection for tinnitus, assigning an effective date of the September 2018 phone call. The Veteran appealed the effective date by way of formal Notice of Disagreement in November 2019. While the Veteran did not initiate an appeal to the July 2018 rating decision, new and material evidence was submitted within a year of the that rating decision in the form of the VA examination. As such, the July 2018 rating decision did not become final, and the issue remained on appeal. Therefore, the Board finds that February 23, 2018, is the earliest claim for entitlement to service connection for tinnitus and is the proper effective date for the grant of entitlement to service connection for tinnitus. 2. Entitlement to an earlier effective date, earlier than September 24, 2018, for the evaluation of bilateral hearing loss evaluated as 40 percent disabling. The Veteran contends that he is entitled to an earlier effective date for the award of a 40 percent disability rating for his service-connected bilateral hearing loss. The effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application." 38 U.S.C. § 5110 (a). The effective date for increased rating shall be the earliest date of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date for increased ratings shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An effective date for an increased rating may be assigned later than the date of receipt of the claim, if the evidence shows that the increase in disability actually occurred after the claim was filed, but never earlier than the date of receipt of the claim for increase. In general, "date of receipt" means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r). 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 C.F.R. § 3.1(p). The Veteran filed an original claim for entitlement to service connection for bilateral hearing loss in February 2018 and in a July 2018 rating decision the AOJ granted service connection and assigned a noncompensable rating effective the date of the February 2018 claim. The Veteran did not file a formal Notice of Disagreement with this rating decision but did call the AOJ to express his disagreement which led to an October 2019 VA hearing loss examination. The October 2019 examination results provided evidence sufficient to increase the Veteran's disability rating to 40 percent, with an effective date of September 24, 2018, the date of the Veteran's call. The Veteran then filed a formal appeal of this date, alleging that the 40 percent evaluation should be extended back to the initial February 2018 claim. The Board finds that the evidence does not support an effective date prior to September 24, 2018, for a 40 percent disability rating for service-connected bilateral hearing loss. The Board acknowledges, as determined above, that the July 2018 rating decision establishing a noncompensable disability rating for bilateral hearing loss was not final and remained open. However, the evidence necessary to establish a 40 percent disability rating was not present until the Veteran's February 2018 VA examination. The Veteran's July 2018 hearing loss examination results demonstrate the Veteran had an average pure tone threshold in decibels of 58 in the right ear and 31 in the left ear with speech discrimination results of 42 percent in the right ear and 94 percent in the left ear. These results entitle the Veteran to a noncompensable rating under the hearing loss evaluation criteria pursuant to 38 C.F.R. § 4.85. The two rating decisions resulted in a staged rating for the already service-connected hearing loss disability. There is no indication that the July 2018 examination was irregular, or otherwise inadequate for rating purposes, and the results must be accepted. Therefore, the evidence supports the current staged disability rating and the current effective date for the 40 percent rating, as the earliest evidence of a more severe hearing loss disability is the Veteran's September 24, 2018, call to the VA. Accordingly, the evidence supports a finding against that entitlement to a 40 percent disability rating for bilateral hearing loss arose before September 24, 2018. 38 C.F.R. § 3.400 (b)(2). As such, an earlier effective date for the award is not warranted. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.