93 Decision Citation: BVA 93-00029 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-50 712 ) DATE ) ) ) THE ISSUES 1. Entitlement to an effective date earlier than March 5, 1991, for the award of compensation for bilateral defective hearing. 2. Entitlement to an effective date earlier than March 5, 1991, for the award of compensation for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Paul J. Somelofske, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (the Board) on appeal from rating determinations of the Department of Veterans Affairs (VA) Muskogee, Oklahoma, Regional Office (RO). The veteran served on active duty from January 1955 to January 1957. He is represented in this appeal by Veterans of Foreign Wars of the United States. In a rating decision dated in March 1991, the veteran was granted service connection for bilateral defective hearing and was assigned a 10 percent evaluation, effective from March 5, 1991. A notice of disagreement with regard to the assignment of the March 5, 1991, effective date was received in May 1991; the veteran also raised the issue of entitlement to service connection for tinnitus. A rating decision dated in July 1991 granted service connection for tinnitus and assigned a 10 percent evaluation, effective from March 5, 1991, and denied an effective date earlier than March 5, 1991, for bilateral defective hearing. The statement of the case pertaining to entitlement to compensable evaluations, prior to March 5, 1991, for bilateral defective hearing and tinnitus was issued in July 1991. A rating decision dated in September 1991 increased the veteran's 10 percent evaluation for bilateral defective hearing to 20 percent, effective from March 5, 1991. The substantive appeal was received in November 1991. The case was docketed at the Board in December 1991. The veteran's representative subsequently submitted additional written argument to the Board in April 1992. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed clear and unmistakable error in the January 1967 original rating decision in which the RO denied service connection for bilateral defective hearing, finding that hearing loss existed prior to service and was not aggravated by service. The veteran asserts that he had normal hearing upon entry into service and, notwithstanding the fact that he may have had a preexisting hearing loss, his hearing acuity was aggravated by his military duties. He maintains that the evidence of record at the time of the January 1967 rating decision was sufficient to establish service connection and that the RO's decision was clearly and unmistakably erroneous. As such, the veteran states that service connection for his bilateral defective hearing and tinnitus should be effective as of the date of his original claim, and that the compensable evaluations for such disabilities should be effective as of the date of that claim. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the reasons and bases hereinafter set forth, it is the decision of the Board that the rating decision of January 1967 was clearly and unmistakably erroneous by denying service connection for bilateral defective hearing, and that the effective date of September 13, 1966, is warranted for the grant of service connection for bilateral defective hearing and tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's original application for compensation benefits for bilateral defective hearing and tinnitus was received on September 13, 1966; bilateral defective hearing and tinnitus were both shown to have been present at that time. 3. In a rating decision dated in January 1967, the veteran was denied service connection for bilateral defective hearing. He was notified of that decision by a letter dated in February 1967, but failed to timely file a notice of disagreement with that decision. 4. The January 1967 rating decision was not consistent with or supported by the evidence then of record. CONCLUSIONS OF LAW 1. The January 1967 rating decision, which denied service connection for bilateral defective hearing, was clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5107(a), 7105 (West 1991); 38 C.F.R. 3.105(a) (1991). 2. An effective date of September 13, 1966, represents the proper effective date for the grant of service connection for bilateral defective hearing. 38 U.S.C.A. §§ 5107(a), 5110 (West 1991); 38 C.F.R. § 3.400 (1991). 3. An effective date of September 13, 1966, represents the proper effective date for the grant of service connection for tinnitus. 38 U.S.C.A. §§ 5107(a), 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has carefully considered the evidence compiled by and on behalf of the veteran. We find that the veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that the veteran has presented a claim which is plausible. We are satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to his claim is required to comply with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a). An examination report for the purpose of enlistment in the Reserves, dated in March 1952, indicates that the veteran had normal hearing, 15/15, bilaterally, for whispered voice testing; no defects or abnormalities pertinent to the veteran's hearing were noted. The veteran's enlistment examination report, dated in November 1954, indicates that the veteran had normal hearing, 15/15, bilaterally, for whispered voice testing upon entry into active service; no defects or abnormalities pertaining to the veteran's hearing were noted. A May 1955 inservice treatment record reveals that the veteran stated that he had had an audiological study conducted approximately five years earlier and that test results showed a hearing loss. The veteran complained of continuous hearing loss and tinnitus. Whispered voice testing revealed the veteran's hearing to be 12/15 in the right ear with a 53 decibel loss, and 13/15 in the left ear with a 50 decibel loss. The diagnosis was nerve deafness, existing prior to service, with definite service aggravation. Subsequent inservice audiometric evaluation reports revealed bilateral defective hearing. On these examinations, the veteran complained of ringing in the ears; the examiner noted bilateral nerve deafness and tinnitus. The veteran's discharge examination report, dated in December 1956, contains a diagnosis of deafness, nerve type, mild, bilaterally. A report of an examination for Reserve purposes, dated in December 1961, indicates that the veteran had normal hearing, 15/15, bilaterally, for whispered voice testing. Audiometric results revealed normal hearing. A VA examination report, dated in November 1966, indicates that the veteran complained of hearing loss and ringing in his ears. Speech reception threshold results indicate that the veteran had normal hearing; however, pure tone threshold results reveal that the veteran had bilateral defective hearing. The examiner indicated a diagnosis of high frequency sensorineural hearing loss, probably noise induced. On September 13, 1966, the veteran's application for compensation for bilateral defective hearing and ringing in the ears was received. A rating decision, dated in January 1967, denied service connection for bilateral defective hearing on the basis that hearing loss had existed prior to service and that, although there was acute aggravation of hearing loss following firing range work, examination in 1961 and VA examination in November 1966 showed normal hearing and no evidence of permanent aggravation. The rating decision did not address the issue of service connection for tinnitus. The veteran was notified of this decision by a letter dated in February 1967. The law grants a period of 1 year from the date of the notice of the result of the initial determination for initiating an appeal by filing a Notice of Disagreement; otherwise, that determination becomes final and is not subject to revision on the same factual basis in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105; 38 C.F.R. 3.105(a). We note that the veteran did not timely file a notice of disagreement with the January 1967 rating decision denying service connection for bilateral defective hearing. As such, in the absence of clear and unmistakably error, the January 1967 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. 3.105(a). The veteran, however, contends that the January 1967 rating decision is clearly and unmistakably erroneous by denying service connection for bilateral defective hearing. Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet.App. 370 (1991). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Prior to November 1967, hearing was considered within normal limits for VA purposes where the speech reception threshold was less than 16 decibels and the discrimination score was higher than 92 percent, and where the pure tone thresholds in the 250, 500, 1,000, 2,000, and 4,000 hertz frequencies were all less than 30 decibels, with at least three of the frequencies being 15 decibels or less. Department of Veterans Benefits Manual, M21-1, § 50.07 (October 22, 1962). The veteran had normal hearing upon examination for enlistment in the Reserves in March 1952 and entry into active duty in November 1954. In May 1955, a decrease in the veteran's hearing acuity was noted. While the veteran stated on examination that five years earlier he had had an audiological examination and that a hearing loss was noted, there are no clinical records of such evaluation on file. Given that the veteran had two subsequent examinations, one in 1952 and one in 1954, both which indicated normal hearing, the history of preservice existence of hearing loss given by the veteran in May 1955, which is clinically unsupported, is not sufficient, when considered with all the evidence of record, to rebut the presumption of soundness upon entry into service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b)(1). As such, the veteran is deemed to have been in sound condition upon entry into active duty. Id. At the time of the January 1967 rating determination, the evidence of record, therefore, indicated that the veteran had normal hearing upon entry into active service and had diagnoses of bilateral nerve-type deafness in service and upon separation from active duty. The clinical evidence then of record clearly indicated that bilateral defective hearing was incurred in service. We note that the December 1961 audiometric examination report indicates that the veteran had normal hearing. Department of Veterans Benefits Manual, M21-1, § 50.07 (October 22, 1962). However, while the RO reported that VA audiometric results in November 1966 revealed normal hearing, such results were normal for speech reception thresholds, only. Pure tone testing clearly revealed bilateral defective hearing. Id. Despite the "unusual" findings on examination in December 1961, the service medical records and VA audiometric examination in November 1966 indicate that bilateral defective hearing was incurred in service. 38 U.S.C.A. §§ 1110, 1131; Department of Veterans Benefits Manual, M21-1, § 50.07 (October 22, 1962). As such, the January 1967 rating decision denying service connection for bilateral defective hearing was not consistent with or supported by the evidence then of record and is clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5107(a), 7105 (West 1991); 38 C.F.R. 3.105(a); Oppenheimer v. Derwinski, 1 Vet.App. 370 (1991). Since the January 1967 rating decision is clearly and unmistakably erroneous, an earlier effective date for the grant of service connection for bilateral defective hearing is warranted. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. For the granting of service connection, the effective date will be 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, the earliest effective date is the date of receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i) (1991). The veteran's original application for compensation, received on September 13, 1966, came over nine years after the veteran's separation from service. Therefore, the earliest possible effective date for the granting of service connection for bilateral defective hearing is the date of the receipt of the claim. Id. As such, service connection for bilateral defective hearing is effective from September 13, 1966, since bilateral defective hearing was shown to be present at that time. Id. In his original application for compensation, the veteran sought service connection for ringing in the ears due to acoustic trauma from rifle range fire, in addition to service connection for hearing loss. The claim for service connection for tinnitus was not adjudicated by the RO when his claim for service connection for hearing loss was adjudicated in January 1967. In the veteran's May 1991 notice of disagreement, the veteran again raised the issue of entitlement to service connection for tinnitus. In a rating decision dated in July 1991, the veteran was granted service connection for tinnitus and was assigned a 10 percent evaluation, effective from March 5, 1991. The veteran contends, however, that the effective date for the grant of service connection for tinnitus should be earlier than March 5, 1991. The veteran's September 13, 1966 application is indeed a claim for service connection for tinnitus and, as the January 1967 rating decision did not adjudicate the issue, the veteran's claim was open until July 1991 when the issue of service connection for tinnitus was adjudicated and service connection for tinnitus was granted. As such, the earliest possible effective date is either the day following separation from active service or date entitlement arose if the claim was received within one year after separation from service; otherwise, the earliest possible effective date is the date of receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Since the veteran's original application came over nine years after his separation from service and tinnitus was shown to have been present during service, the earliest possible effective date is the date of receipt of the claim. Id. Therefore, the grant of service connection for tinnitus is effective from September 13, 1966. Id. ORDER Entitlement to an effective date of September 13, 1966, for the grant of service connection for bilateral defective hearing is granted. Entitlement to an effective date of September 13, 1966, for the grant of service connection for tinnitus is granted. REMAND In light of the Board's decision to assign earlier effective dates for the grant of service connection for bilateral defective hearing and tinnitus, the evaluations for such disabilities must be considered by the RO with respect to the new effective dates. This case, therefore, is REMANDED to the RO for the following action: The RO should evaluate the veteran's service-connected bilateral defective hearing, effective from September 13, 1966, and should evaluate the veteran's service-connected tinnitus, effective from September 13, 1966. When the above development has been completed, if any of the benefits sought on appeal is not granted, the veteran and his representative should be issued a supplemental statement of the case, which includes the pertinent laws and regulations and adequate reasons and bases for the RO's decision, and should be afforded an opportunity to respond thereto. The case should then be returned to the Board, if in order, for further appellate consideration. The veteran and his representative need take no further action unless notified by the RO. The purpose of this remand is to afford the veteran due process of law. By this remand, we intimate no opinion as to the ultimate determination warranted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * WILLIAM J. REDDY PHILIP E. WRIGHT *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.