Citation Nr: 1505087 Decision Date: 02/03/15 Archive Date: 02/09/15 DOCKET NO. 12-22 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE 1. Entitlement to an effective date earlier than June 20, 2011, for the grant of service connection for bilateral hearing loss. 2. Entitlement to an effective date earlier than June 20, 2011, for the grant of service connection for tinnitus. 3. Entitlement to an initial compensable evaluation for bilateral hearing loss. 4. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. 5. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran had active military service from January 1976 to January 1979. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Louisville, Kentucky, which granted service connection for bilateral hearing loss and tinnitus, and denied the claim for service connection for hepatitis. The Veteran appealed the initial ratings assigned for both disorders along with the effective dates of the award and the denial of service connection for hepatitis C. In March 2014, the claim was remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, for the purpose of scheduling a travel board hearing. Said hearing, which was a videoconference, was accomplished in June 2014 before the undersigned. A transcript of that hearing is included in the claims folder. FINDINGS OF FACTS 1. On the record at a June 2014, hearing the Veteran testified prior to a decision in the appeal, that he wished to withdraw his appeals on the issues of entitlement to increased evaluations for bilateral hearing loss and tinnitus, and entitlement to an earlier effective date for the grant of service connection for bilateral hearing loss. 2. The RO received the Veteran's claim for service connection for tinnitus on June 20, 2011; there is no evidence of an earlier claim. 3. The Veteran has current hepatitis C that was caused by injury in the active military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal with respect to the issues of entitlement to an effective date earlier than June 20, 2011, for the grant of service connection for bilateral hearing loss, entitlement to an initial compensable evaluation for bilateral hearing loss, and entitlement to an initial evaluation in excess of 10 percent for tinnitus, have been met. 38 U.S.C.A. § 7105(b)(2) (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2014). 2. The criteria for the assignment of an effective date earlier than June 20, 2011, 2010, for the award of service connection for tinnitus are not met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.157, 3.159, 3.160, 3.400 (2014). 3. The criteria for service connection for hepatitis C have been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Appeal Under 38 U.S.C.A. § 7105(d)(5) (West 2014), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or on the record at a hearing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.204(b) (2014). Withdrawal may be made by the veteran or by his authorized representative in writing or on the record at a hearing. 38 C.F.R. § 20.204(a) (2014). On the record at the June 2014, hearing the Veteran stated that he wished to withdraw his appeal with respect to the issues of the issues of entitlement to an effective date earlier than June 20, 2011, for the grant of service connection for bilateral hearing loss, entitlement to an initial compensable evaluation for bilateral hearing loss, and entitlement to an initial evaluation in excess of 10 percent for tinnitus. As the Veteran has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues and they are dismissed. I. Earlier Effective Date - Tinnitus A. The Veterans Claims Assistance Act of 2000 (VCAA) The appeal as to the effective date for service connection for tinnitus arises from the decision granting the claim for service connection. Once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As to VA's duty to assist, the Board thus finds that all pertinent treatment and examination records have been obtain and thus there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A (West 2014), or 38 C.F.R. § 3.159 (2014). The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the June 2014 hearing, the undersigned explained that the effective date depended on the date of claim and the Veteran was asked for information as to whether there had been an earlier claim. the issues on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2014) or identified any prejudice in the conduct of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant. B. Laws and Regulations Generally, 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) (West 2014); 38 C.F.R. § 3. 400 (2014). But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a) (West 2014). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3. 400(b)(2) (2014). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran that may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C.A. § 5110(b)(3) (West 2014); 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board is required to adjudicate all issues reasonably raised by a liberal reading of all documents and oral testimony in the record prior to the Board's decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). But in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be pain or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C.A. § 5101(a) (West 2014); 38 C.F.R. §§ 3.151(a) (2014). 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) (2014). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). In short, the essential requirements of any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 9, 84 (2009). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2014). The pending claims doctrine provides that a claim remains pending in the adjudication process - even for years - if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2014). C. Facts and Discussion The Veteran's last period of continuous active service ended on January 29, 1979. He has not claimed, nor does the record otherwise show that there was claim for service connection for tinnitus within a year of service discharge. The Veteran testified that he experienced tinnitus ever since service. This would indicate that entitlement to service connection arose at that time. Since entitlement arose prior to any alleged claim, the effective date is controlled by the date of claim. See 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. §§ 3.1(p), 3.155(a), 3. 400 (2014). The Veteran has contended that the effective date should be controlled by when his disability arose, but as just explained the law and regulations do not permit service connection to be granted on that basis. In order for the Veteran to be entitled to an earlier effective date, the Board must determine whether the claims folder contains any prior informal or formal claim for benefits for service connection for bilateral hearing loss and tinnitus between the time of the discharge from service on January 29, 1979, until the current June 20, 2011, effective date now assigned. 38 C.F.R. §§ 3.1(p), 3.155(a) (2014); see Lalonde v. West, 12 Vet. App. 377, 382 (1999). At the hearing the Veteran testified that he had earlier sought treatment for his disability at VA, but had been badly treated and became discouraged. Regardless of his reasons for not pursuing an earlier claim, the fact remains that he did not file an earlier claim. Under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits. However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Medical records cannot constitute a claim for service connection. Brannon. Accordingly, his efforts to obtain VA treatment could not constitute an earlier claim for service connection. Here, the Veteran's June 2011 claim was not pre-dated by a prior denial, as contemplated in 38 C.F.R. § 3.157(b), and, as such, that regulation does not afford a basis for finding that his claim, be it formal or informal, of entitlement to service connection for tinnitus or bilateral hearing loss was filed earlier than June 20, 2011. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993). The Veteran's thoughts about filing a claim prior to June 2001, cannot constitute an earlier claim. VA is not required to anticipate potential claims where no intention to raise the claim has been expressed. Brannon, 12 Vet. App. at 35;Talbert, 7 Vet. App. at 356-57. The claims folder contains no other communication from the Veteran or his representative indicating an intent to seek, or a belief in entitlement to, service connection for tinnitus and bilateral hearing loss from the time January 29, 1979, until June 20, 2011, the current date assigned. 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). The Veteran might argue that when he applied for hearing aids through the VA health care system in the fall of 1993, that application was an informal claim for benefits. However, an application for hearings aids reflects only the Veteran's desire for treatment and does not show that he was claiming the disability was service connected. There is nothing in the associated correspondence that would suggest or indicate that the Veteran believed that he had tinnitus that was related to service. Moreover, in the response from the VA, dated November 4, 1993, VA explicitly stated that there was nothing to suggest that the Veteran required hearings aids "because of a condition incurred or aggravated while you were on active military duty." There is no indication in the record that the Veteran disagreed with this statement and did not raise the issue of entitlement to service connection for bilateral hearing loss until 2011. In summary, the claims folder contains no other communication from the Veteran or his representative indicating intent to seek, or a belief in entitlement to, service connection for bilateral hearing loss or tinnitus from the time of discharge from service in January 1979 until June 20, 2011, the current effective date assigned. 38 C.F.R. §§ 3.1(p). The claim for an effective date earlier than June 20, 2011, for the award of service connection for tinnitus must be denied. 38 U.S.C.A. § 5107(b) (West 2014). III. Service Connection B. Laws and Regulations Service connection will be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). In order to establish service connection for the claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2014). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2014). Establishing continuity of symptomatology under § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and, in turn, link current disability to service. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b) (2012), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a) (2014), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d) (2014). C. Facts and Discussion The Veteran has come before the VA claiming that he now suffers from hepatitis that he believes was caused by or the result of his military service. He first avers that he became infected when he was inoculated with a "shot gun"; he maintains that because the needles in the shot gun were not cleaned and constantly changed, he developed hepatitis as a result of the "shared" needles. Alternatively, he contends that he was infected when he gave first aid to a fellow Marine who injured his hand and the Veteran tried to stop the bleeding of the Marine. In conjunction with his claim for benefits, the Veteran underwent a VA "Hepatitis, Cirrhosis and other Liver Conditions" Examination in September 2011. The examiner confirmed the diagnosis of hepatitis but then opined: [T]he veteran's chronic hepatitis C infection was less likely . . . caused by or the result of the veteran's active duty service. . . However, the preponderance of evidence in review of the medical ventricles not show any cause relationship between these [service occurring] injections and development of any type of hepatitis. The veteran states that he obtained tattoos while on active duty, but his military and physical does not show the presence of tattoos. There is no nexus with which to link the veteran's hepatitis C condition and the veteran's active duty service. Looking at all individuals with hepatitis C, the cause is unknown in a significant number. It is also quite possible that veteran may not recall some of his riskier behaviors, possibly due to his history of alcohol abuse. After the Veteran's hearing before the Board in June 2014, he proffered a written statement by a VA doctor concerning his hepatitis. The opinion was dated July 2014. In that letter opinion, the doctor wrote: Patient had 2 tattoos in 1976/77. He was exposed to blood splatter in 1976/77 after a fellow marine injured his hand and propelled blood in the face of [the veteran]. [The Veteran] rendered first aid without benefit of gloves or protective clothing. He also reports vaccination practices in which blood was on arms of Marines and vaccine guns were not properly cleaned. He does not have history of IV drug use, unsafe sex practices or blood transfusions. The above risk factors are just as likely as not the cause of his hepatitis C. There are no other medical opinions of record that either support or refute the Veteran's assertions that his blood disorder began in or was caused by his military service. In this instance, there is competent medical evidence in support of the appeal. There is no dispute that the Veteran now suffers from hepatitis - the question that the Board must answer is whether the currently diagnosed disorder is etiologically related to his service. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that the probative value of an opinion depends on the accuracy of the facts considered, whether the opinion is definitive, and whether it is supported by an adequate rationale. In sum, in Nieves-Rodriguez, the Court indicated that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. In this instance, there is one medical opinion that indicates that there is a relationship between the Veteran's current disorder and his military service and one to the effect that it is not. Both opinions note various items within the Veteran's past and both provide a rationale to support their specific opinion. Hence, they are of equal weight When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); see also 38 C.F.R. § 3.102 (2014). In view of the foregoing, the Board finds that the evidence is, at least, in equipoise. Because the evidence is in equipoise, and since the Veteran is supposed to be afforded the benefit-of-the-doubt, the Board concludes that the Veteran's hepatitis C began in or is the result of his military service. As such, the claim is granted. ORDER 1. The issue of entitlement to an effective date earlier than June 20, 2011, for the grant of service connection for bilateral hearing loss, is dismissed. 2. The issue of entitlement to an effective date earlier than June 20, 2011, for the grant of service connection for tinnitus, is denied. 3. The entitlement to an initial compensable evaluation for bilateral hearing loss is dismissed. 4. Entitlement to an initial evaluation in excess of 10 percent for tinnitus is dismissed. 5. Entitlement to service connection for hepatitis C is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs