tdiu Tinnitus -- March 10, 1976, Liberalizing Legislation Expanded

[carlie]

A great Approved EED Tinnitus Claim:

http://www.va.gov/vetapp92/files2/9217066.txt

Tinnitus Not Reported in Service - Granted w/nexus of Hearing Loss:

http://www.va.gov/vetapp92/files2/9219321.txt

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Another great Tinnitus case:

92 Decision Citation: BVA 92-28565

Y92

BOARD OF VETERANS' APPEALS

WASHINGTON, D.C. 20420

DOCKET NO. 92-53 160 ) DATE

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THE ISSUES

1. Entitlement to an effective date earlier than

September 21, 1987, for the award of service connection for

tinnitus.

2. Entitlement to a total disability evaluation based on

individual unemployability due to service-connected

disabilities.

REPRESENTATION

Appellant represented by: Paralyzed Veterans of America,

Inc.

WITNESS AT HEARING ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

C. S. Freret, Counsel

INTRODUCTION

The appellant had active military service from March 1964 to

March 10, 1967.

A claim for entitlement to service connection for ringing in

the ears was received on May 4, 1967. In an October 1967

rating decision, the Jackson, Mississippi, Regional Office

(hereinafter RO) did not address the appellant's claim of

entitlement to service connection for ringing in the ears.

In a notice of disagreement received by the Department of

Veterans Affairs (hereinafter VA) in December 1967, the

appellant appealed the denial of service connection for ear

disability. In a substantive appeal received in January

1968, the appellant continued to argue for service

connection for ringing in the ears.

A claim for entitlement to service connection for tinnitus

was received on September 21, 1988. In a December 1988

rating decision, the RO granted service connection for

tinnitus and assigned a 10 percent evaluation, effective

September 21, 1987, under the provisions of 38 C.F.R.

§ 3.114(a).

In September 1989, the appellant filed a claim for an

effective date earlier than September 21, 1987, for the

assignment of a 10 percent evaluation for his

service-connected tinnitus. In a November 1989 rating

decision, the RO denied an earlier effective date for the

award of a 10 percent evaluation for tinnitus, stating that

a grant of service connection for tinnitus due to acoustic

trauma had not been possible prior to March 10, 1976, and

that subsequent to that date the appellant's claim for

entitlement to service connection for tinnitus had been

received on September 21, 1988. The appellant was notified

of the November 1989 rating decision by letter dated in

January 1990, and he did not file an appeal within one year

thereafter.

This case comes before the Board of Veterans' Appeals

(hereinafter Board) on appeal of rating decisions by the RO,

dated in January 1991 and in April 1991. In the January

1991 rating decision, the RO denied entitlement to a total

disability evaluation based on individual unemployability

due to service-connected disabilities. A notice of

disagreement as to the January 1991 rating decision was

received in March 1991, and, at the same time, the appellant

requested an earlier effective date for the grant of

service-connected compensation for his tinnitus. In the

April 1991 rating decision, the RO determined that no new

and material evidence had been presented to permit reopening

of the claim of entitlement to an effective date earlier

than September 21, 1987, for the grant of service-connected

compensation for tinnitus. A statement of the case was

issued in April 1991. The substantive appeal was received

in June 1991. The appellant presented testimony at a

personal hearing conducted at the RO in August 1991, and the

hearing officer rendered a decision in September 1991. A

supplemental statement of the case was issued in September

1991. The case was received and docketed at the Board in

January 1992, at which time it was referred to the

appellant's representative, Paralyzed Veterans of America,

Inc., who submitted a statement in support of the

appellant's claims in February 1992. The case is now ready

for appellate consideration.

The issue of entitlement to a total disability evaluation

based on individual unemployability due to service-connected

disabilities will be dealt with in the REMAND portion of

this decision.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant asserts that the RO committed error in not

assigning an effective date earlier than September 21, 1987,

for the grant of a 10 percent disability evaluation for his

tinnitus. He contends that his initial claim of entitlement

to service connection for tinnitus was filed in May 1967 and

was never adjudicated, thereby remaining open until the

December 1988 rating decision which granted service

connection for tinnitus and assigned a 10 percent evaluation

effective September 21, 1987, under the provisions of 38

C.F.R. § 3.114(a).

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 appellant's claims

file, and for the following reasons and bases, it is the

decision of the Board that the November 1989 rating

decision, which denied an earlier effective date for the

grant of a 10 percent evaluation for tinnitus was clearly

and unmistakably erroneous, and that the evidence shows that

the proper effective date for the award of a 10 percent

disability evaluation for tinnitus is March 10, 1976. The

effective date for the grant of service connection for

tinnitus at a noncompensable rate is March 11, 1967.

FINDINGS OF FACT

1. A claim for entitlement to service connection for

tinnitus was received on May 4, 1967, and was still pending

at the time of the December 1988 rating decision which

granted service connection for tinnitus and assigned a

10 percent evaluation, effective September 21, 1987, under

the provisions of 38 C.F.R. § 3.114(a).

2. The November 1989 rating decision was clearly and

unmistakably erroneous in ruling that, prior to March 10,

1976, service connection could only be granted for tinnitus

if the tinnitus was due to head trauma.

3. The effective date for the grant of service connection

for tinnitus at a noncompensable rate is March 11, 1967.

The effective date of a 10 percent evaluation for tinnitus

is March 10, 1976.

CONCLUSIONS OF LAW

1. The November 1989 rating decision was clearly and

unmistakably erroneous in denying an effective date earlier

than September 21, 1987, for the grant of service-connected

compensation for tinnitus. 38 U.S.C.A. §§ 1110, 1131, 1155,

5107, 7105 (West 1991); 38 C.F.R. §§ 3.105(a), 4.87(a),

Diagnostic Code 6260 (1991).

2. An effective date of March 11, 1967, is warranted for a

noncompensable rating for tinnitus, and an effective date of

March 10, 1976, is warranted for a 10 percent evaluation for

tinnitus. 38 U.S.C.A. §§ 1155, 5107, 5110(a) (West 1991);

38 C.F.R. §§ 3.114(a), 3.160©, 3.400, 4.87(a), Diagnostic

Code 6260, effective March 10, 1976 (1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The provisions of 38 U.S.C.A. § 5107(a) have been met, in

that the appellant's claims are well-grounded and adequately

developed.

Tinnitus

Review of the appellant's claims file reveals that a claim

for entitlement to service connection for ringing in the

ears was received on May 4, 1967. The appellant tried to

continue to prosecute that claim in statements received in

December 1967 and January 1968, which were accepted as a

notice of disagreement and a substantive appeal,

respectively, as to other issues. However, the RO did not

attempt to develop or decide the appellant's claim for

entitlement to service connection for tinnitus until he

again requested service connection for this disability in

September 1988. Pursuant to the September 1988 request by

the appellant, the RO granted service connection for

tinnitus in a December 1988 rating decision and assigned an

effective date of September 21, 1987, under the provisions

of 38 U.S.C.A. § 5110; 38 C.F.R. § 3.114(a)(3). Those

provisions permit authorization of benefits for a period of

one year prior to the date of receipt of a request by a

claimant to review a claim following liberalizing

legislation, if the request for review was more than one

year after the effective date of such liberalizing

legislation.

As the appellant did not timely file an appeal of the

November 1989 rating decision which denied an earlier

effective date for the grant of service-connected

compensation for tinnitus, that decision is final in the

absence of clear and unmistakable error. 38 C.F.R.

§ 3.105(a). That rating decision denied the appellant's

claim on the basis that service connection could only be

granted for tinnitus prior to March 10, 1976, if the

tinnitus had been caused by head trauma. This is clearly

and unmistakably erroneous because service connection could

be granted for tinnitus prior to March 10, 1976, if the

facts demonstrated it was incurred in or aggravated by

service. Prior to March 10, 1976, a compensable rating

could be awarded for tinnitus only if it was due to head

trauma. Therefore, as the November 1989 rating decision was

clearly and unmistakably erroneous, it is not final.

The evidence presented in this case shows that the appellant

had a continuous pending claim for entitlement to service

connection for tinnitus from May 4, 1967, to the December

1988 rating decision that granted service connection for

tinnitus. 38 C.F.R. § 3.160©. Thus, the Board finds that

the December 1988 rating decision should have granted

service connection for tinnitus effective March 11, 1967,

the day after the appellant's separation from service,

because his May 4, 1967, claim was filed within the first

year following his separation from service. 38 C.F.R. §

3.400(b)(2).

Effective March 10, 1976, liberalizing legislation expanded

the instances for a veteran to receive a 10 percent

evaluation for tinnitus to include acoustic trauma (which

the December 1988 rating decision determined to be the cause

of the appellant's tinnitus). The Board finds that a 10

percent evaluation for tinnitus should be effective as of

the date of liberalizing legislation, March 10, 1976. A

noncompensable rating is in order from March 11, 1967, to

March 9, 1976.

ORDER

An effective date of March 11, 1967, is granted for the

award of a noncompensable evaluation for tinnitus and an

effective date of March 10, 1976, is granted for the award

of a 10 percent disability evaluation for tinnitus, subject

to controlling regulations governing the payment of monetary

awards.