Citation Nr: 24005463 Decision Date: 02/02/24 Archive Date: 02/02/24 DOCKET NO. 20-20 101 DATE: February 2, 2024 ORDER The appeal for a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed. The appeal for a total disability rating based on individual unemployability (TDIU) is dismissed. The appeal for an effective date earlier than August 2, 2016, for the award of service connection for tinnitus is denied. FINDINGS OF FACT 1. On June 16, 2022, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and his representative that a withdrawal of the appeals for a higher disability rating for PTSD and entitlement to a TDIU is requested. 2. Entitlement to service connection for tinnitus arose after the filing of the claim, as well as the already-assigned effective date of August 2, 2016. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for a higher disability rating for PTSD and entitlement to a TDIU are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an effective date earlier than August 2, 2016, for the award of service connection for tinnitus are not met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to March 1972 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. In June 2022, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. The electronic filing system contains records that were associated with the file by VA, rather than the Veteran, since the last readjudication of the claims without a waiver of initial review by the VA Regional Office. However, as the records are duplicative of those already received or are otherwise not pertinent to the claim for tinnitus, and the remaining claims are being dismissed at the request of the Veteran, there is no risk of prejudice to him from in proceeding without the waiver. Withdrawn Claims 1. The appeal for a disability rating in excess of 70 percent for PTSD is dismissed. 2. The appeal for a TDIU is dismissed. During the June 2022 hearing, the Veteran and his representative explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeals for a higher disability rating for PTSD and entitlement to a TDIU from the legacy appeals system. See Hearing Transcript pp. 5. The undersigned explained that withdrawing the appeals meant that they would be dismissed and would not be decided with the claims remaining on appeal. The Veteran confirmed his understanding of the impact of the dismissal and his desire to proceed with withdrawing the appeal in light of the fact that the claims were already pending and would be adjudicated in a separate appeal stream under the Appeals Modernization Act. The record thus demonstrates that the consequences of the withdrawal were fully understood. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Here, as the Veteran and his representative have withdrawn the appeals for a higher disability rating for PTSD and entitlement to a TDIU from the legacy appeals system, there remain no allegations of errors of fact or law for appellate consideration. The Board is not permitted to review the appeals and they are dismissed. Earlier Effective Date 3. The appeal for an effective date earlier than August 2, 2016, for the award of service connection for tinnitus is denied. Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). 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). VA amended its regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. See Norris v. West, 12 Vet. App. 413 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). On December 12, 1990, the Veteran filed a claim for service connection for tinnitus via VA Form 21-526 (Veteran's Application for Compensation or Pension). In a July 1991 rating decision, the VA Regional Office denied the claim. While the Veteran did not file a Notice of Disagreement in response to that decision, on close review of the record, the Board finds that a notification letter advising him of the July 1991 determination and of his appellate rights was never generated or sent to him. The record contains neither internal documentation of a letter, nor a copy of such a letter mailed to the Veteran or his representative. The time to appeal a VA decision does not commence, and the VA decision will not become final, if a veteran and their representative are not notified of the decision and their appellate rights. See 38 U.S.C. § 5104(a); 38 C.F.R. §§ 3.103, 3.104(a), 3.160(d), 19.25. See also AG v. Peake, 536 F.3d 1306 (Fed. Cir. 2008) (failure to notify a claimant of his right to appeal a decision of the VA Regional Office, as required by 38 U.S.C. § 5104 (a) and 38 C.F.R. § 3.103 (b), renders the decision non-final); Ingram v. Nicholson, 21 Vet. App. 232, 241 (2007) (a decision may be rendered nonfinal when the time for appealing either a VA Regional Office or a Board decision did not run where the [Secretary] failed to provide the veteran with information or material critical to the appellate process); Hauck v. Brown, 6 Vet. App. 518, 519 (1994) (where an appellant never received notification of a decision denying his or her claim, then the usual one-year limit for timely appealing the decision does not begin to accrue ("run"); instead, it is tolled ("stopped")). Thus, the lack of notification of the July 1991 rating decision vitiates the finality of the decision. On August 2, 2016, the Veteran again sought service connection for tinnitus via VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits). In the December 2016 rating decision on appeal, he was awarded service connection for the disability, effective from the date of his August 2, 2016, claim. The Veteran perfected an appeal of the effective date assigned by this decision. His contentions in this regard are unknown from the record. In light of the lack of notification of the July 1991 rating decision, the Board finds that December 12, 1990, serves as the earliest possible date for the claim for service connection for tinnitus. As the July 1991 rating decision is not final, the December 1990 claim has been pending since its filing and was not adjudicated, implicitly or explicitly, until the December 2016 rating decision on appeal. As noted above, 38 C.F.R. § 3.400 provides that the proper effective date for an award of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." As such, the remaining issue is when "entitlement arose." The term, "date entitlement arose," is not specifically defined in the current statute or regulation. The United States Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Significantly, the Court has held that the effective date for a grant of service connection can be no earlier than the date the disability first manifested. McGrath, 14 Vet. App. at 28. On review of the record as described below, the Board finds that entitlement for tinnitus arose subsequent to the December 12, 1990, claim. In March 1991, a VA audiological examination was conducted, and an Audiological Case History report was completed. The Veteran reported experiencing symptoms of hearing loss since his exposure to helicopter noise during service. However, he explicitly denied having tinnitus. Further, the examiner found no associated physical symptoms, disabilities, or diseases in connection with the Veteran's subjective hearing loss. Similarly, in October 2022, the Veteran underwent a general physical at his VA Medical Center in order to establish care. He was examined, and a complete medical history was obtained. He specifically denied having tinnitus to his treating provider. In August 2023, he was again seen for an annual VA physical examination. Again, he was examined, a complete medical history was obtained, and he denied experiencing tinnitus. Significantly, a review of the post-service record is devoid of any complaints, diagnoses, or treatment pertaining to tinnitus until the August 2016 claim was filed and the November 2016 VA examination was conducted. As such, the Board finds that entitlement to tinnitus did not arise until documented by the November 2016 VA audiological examiner. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (observing that "ringing in the ears is capable of lay observation.") However, in contrast to the Veteran's recent reports of experiencing tinnitus since military discharge, he specifically denied experiencing tinnitus when asked by his medical providers on multiple occasions throughout the appeal period, including on a comprehensive audiological examination in 1991. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Further, the record is silent for any lay or medical complaints pertaining to tinnitus until the 2016 claim. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board thus finds the Veteran's more recent reports of having ongoing tinnitus since discharge to be not credible given the inconsistencies of his accounts, and that tinnitus did not arise until documented by the November 2016 VA examiner. See Madden v. Gober, 125 F.3d 1477, 148 (holding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Given this, November 24, 2016, serves as the appropriate date for entitlement to service connection for tinnitus as this is the later date between the date of claim and the date entitlement arose. As noted, the VA Regional Office has assigned an effective date of August 2, 2016, which is more beneficial to the Veteran than that allowed under the law. While it is not within the province of the Board to disturb this favorable determination, an effective date earlier than August 2, 2016, for the award of service connection for tinnitus cannot be assigned. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.