Citation Nr: A25035010 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240423-434957 DATE: April 16, 2025 ORDER Entitlement to an earlier effective date of December 31, 2015, but no earlier, for the grant of service connection for tinnitus is granted. Entitlement to an earlier effective date of December 31, 2015, but no earlier, for the grant of service connection for left ear hearing loss, is granted. FINDING OF FACT Affording him the benefit of the doubt, the evidence of record shows that the Veteran's left ear hearing loss and tinnitus had manifest by December 31, 2015, the date VA received his claim for compensation which has been continuously pursued. CONCLUSIONS OF LAW 1. The criteria for earlier effective date of December 31, 2015, for service connection for tinnitus have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.2, 4.3, 4.97, Diagnostic Code 6260. 2. The criteria for earlier effective date of December 31, 2015, for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.2, 4.3, 4.97, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served in the Army, on active duty from November 1972 to November 1975. His awards include the National Defense Service Medal, among others. This claim comes before the Board of Veterans' Appeals (Board) on appeal from an April 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This rating decision was for a Higher-Level-Review (HLR) of a rating decision issued in November 2023. In April 2024, the Veteran submitted a VA Form 10182, selecting the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2023 rating decision. Earlier Effective Dates In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance 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 later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). Under the AMA, an effective date can be preserved if the claim is continuously pursued by filing an appropriate administrative review option to an AMA decision, generally within one year from when the decision was issued. 38 C.F.R. § 3.2500 (c). If an AMA claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. § 3.2500 (h). For decisions rendered after a Higher-Level Review by the AOJ, continuous pursuit can be established by filing either a supplemental claim or a VA Form 10182. See 38 C.F.R. § 3.2500(h)(1). 1. Entitlement to an earlier effective date for service connection for tinnitus. 2. Entitlement to an earlier effective date for service connection for left ear hearing loss. The Veteran contends that an earlier effective date is warranted for the grants of service connection for his left ear hearing loss and tinnitus. The Board agrees, and finds that an earlier effective date of December 31, 2015, for both disabilities, is warranted. The Veteran filed an original claim of service connection for bilateral hearing loss and tinnitus in December 2015, in the Legacy appeals system. The RO denied this claim in a March 2016 rating decision. He appealed this decision, and the RO issued a Statement of the Case (SOC) in December 2016. The Veteran perfected an appeal with the timely submission of a VA Form 9 in March 2017. Prior to certification of the Veteran's appeal to the Board, in May 2018, VA received the Veteran's RAMP Opt-In Election Form, wherein he withdrew his pending appeal under the Legacy system and opted to proceed under the AMA, electing to have an HLR decision. His HLR was denied in a November 2018 rating decision. In April 2019, the Veteran submitted a VA Form 10181, selecting the Hearing docket. The Board notes that the Veteran was due to appear in a hearing in August 2023. Unfortunately, the Veteran and his representative did not appear for his scheduled Board hearing. The Veterans Law Judge (VLJ) in that appeal, in an August 2023 letter, communicated that good cause had not been shown to reschedule the hearing. Moreover, the VLJ informed him that he could submit additional evidence under the AMA in the 90-day period from his scheduled hearing, August 16, 2023. During that period, he submitted a private opinion, medical records and lay statements. However, during the pendency of that appeal, the Veteran submitted a VA Form 20-0995, Supplemental Claim, seeking service connection for bilateral hearing loss and tinnitus in September 2023. Thereafter, the RO issued a November 2023 rating decision granting service connection for left ear hearing loss and tinnitus, effective September 6, 2023, the date VA received his Supplemental Claim. The Board notes the Veteran never withdrew his April 2019 VA Form 10182 regarding service connection for the above disabilities. As such, the Supplemental Claim received September 6, 2023, violated 38 C.F.R. § 3.2500(b) which prohibits concurrent elections of the review of the same claim, and the RO improperly exercised concurrent jurisdiction by issuing the November 2023 rating decision. Nevertheless, the Board does not disturb the favorable findings of that rating decision. 38 C.F.R. § 3.104(c). Due to the above, the Board issued a January 2024 decision, granting service connection for right ear hearing loss only. The Board relied on the opinion of the Veteran's private examiner and his lay statements, submitted in August 2023. The Board's decision mentioned that the issues of left ear hearing loss and tinnitus had been granted and were no longer before the Board. That same month, the RO effectuated the Board's decision, granting right ear hearing loss, rated as noncompensable from December 31, 2015, the date of the Veteran's initial claim. Indeed, the RO found that he had continuously pursued his appeal. Analysis The Board finds that an earlier effective date of December 31, 2015, is warranted for the Veteran's grants of service connection for his left ear hearing loss and tinnitus. Indeed, this is the effective date assigned for his right ear hearing loss based on his original claim, evidentiary window and evidence. In reviewing the procedural history, the Board emphasizes that the RO improperly accepted the Veteran's September 2023 Supplemental Claim. It is clear, in the Board's view, that had the RO not accepted the Supplemental Claim, the Board, in its January 2024 decision, would have granted service connection of the issues above. Indeed, the Board's decision afforded great probative evidence to the Veteran's August 2023 private opinion relating his bilateral hearing loss and tinnitus to service. Moreover, the decision discusses the relevant lay statements from the Veteran and his family of long-term tinnitus and left ear hearing loss symptoms. Given the above, the Board finds that the Veteran has continuously pursued the issues of entitlement to service connection for left ear hearing loss and tinnitus, from the date of his initial claim in December 2015. Further, private treatment records and his own lay statements indicate that he suffered from symptoms of left ear hearing loss and tinnitus since at least that date. However, there are no pending applications for service connection of either disorder prior to December 2015. Thus, entitlement to service connection for left ear hearing loss and tinnitus is granted effective December 31, 2015. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board McDonald, Thomas K.