Citation Nr: 1300133 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 08-14 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for a bilateral hearing loss disability. 2. Entitlement to an effective date prior to January 26, 2006, for service connection for coronary artery disease, status post myocardial infarction. 3. Entitlement to an effective date prior to January 26, 2006, for service connection for a left shoulder disability. 4. Entitlement to an effective date prior to January 26, 2006, for service connection for hearing loss. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for a skin disability. 7. Entitlement to an initial evaluation in excess of 10 percent for service-connected coronary artery disease, status post myocardial infarction. 8. Entitlement to an initial compensable evaluation for service-connected left shoulder disability. 9. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Howard D. Olinsky, attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran has verified active service from December 1990 to December 1995, from May 1999 to June 1999, and from December 2000 to June 2003. This appeal to the Board of Veterans Appeals (Board) arises from an August 2007 rating action which granted service connection for coronary artery disease, status post myocardial infarction, evaluated as 10 percent disabling, as well as a left shoulder disability, and hearing loss, with each disability evaluated as noncompensable. For each grant of service connection, the RO assigned an effective date of January 26, 2006. The RO also denied claims for service connection for a right knee disability, and skin rash. The Veteran has appealed the issues of entitlement to earlier effective dates for the service connected disabilities, entitlement to increased initial evaluations for coronary artery disease, status post myocardial infarction, and a left shoulder disability, and entitlement to service connection for right knee and skin disabilities. In March 2011, the Veteran was afforded a videoconference hearing before the undersigned Acting Veterans Law Judge. A copy of the hearing transcript has been associated with the claims files. The issues of entitlement to service connection for right knee and skin disabilities, entitlement to increased/compensable initial evaluations for coronary artery disease, status post myocardial infarction, and left shoulder disability, and entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. On March 30, 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the issue of entitlement to an initial evaluation in excess of 10 percent for service-connected hearing loss was requested. 2. On January 26, 2006, and no earlier, the Veteran submitted claims for service connection for heart and left shoulder disabilities, and hearing loss. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to an initial evaluation in excess of 10 percent for service-connected hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for an effective date prior to January 26, 2006, for service connection for a heart disability, a left shoulder disability, and hearing loss, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Initial Evaluation Claim- Hearing Loss In August 2007, the RO granted service connection for hearing loss, evaluated as 10 percent disabling. The Veteran appealed the issue of entitlement to an initial evaluation in excess of 10 percent. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during his hearing, held on March 30, 2011, the Veteran indicated that he desired to withdraw his appeal on the issue of entitlement to an initial evaluation in excess of 10 percent for service-connected hearing loss, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. II. Earlier Effective Date Claims The Veteran asserts that he is entitled to effective dates prior to January 26, 2006, for his service-connected heart disability, left shoulder disability, and hearing loss. During his hearing, held in March 2011, he argued that he filed claims for service connection in May 2004, or shortly prior to May 2004, but that he never received a response from VA, and that VA did not take action on these claims. In August 2007, the RO granted service connection for a heart disability, a left shoulder disability, and hearing loss. In each case, the RO assigned an effective date for service connection of January 26, 2006. The RO's August 2007 decision indicates that the effective dates were assigned based on the date of receipt of the claims for service connection. In general, except as otherwise provided, the effective date of an evaluation an 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. 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). 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). The United States Court of Appeals for Veterans Claims (Court) has ruled that there is a "presumption of regularity" under which it is presumed that Government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). While the Ashley case dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied this presumption of regularity to procedures at the RO. The evidence of record does not contain any communication from the Veteran prior to January 26, 2006 that may be construed as an intent to seek or apply for service connection for heart and left shoulder disability, or hearing loss. See Veteran's claim (VA Form 21-526), received January 26, 2006. The Board further notes that the question on page 1 of the VA claim form, at item #A-2a, asks "Have you ever filed a claim with VA?", to which the Veteran stated "No." Given the foregoing, the earliest possible effective date for the grant of service connection for any of the Veteran's disabilities is January 26, 2006. See 38 C.F.R. § 3.400. In summary, there is no evidence to show that VA received a claim for service connection for heart and left shoulder disabilities, and/or hearing loss from the Veteran prior to January 26, 2006. Although the Veteran has asserted that he filed claims at some point in, or shortly prior to, May 2004, he has not presented any clear evidence to rebut the presumption of regularity. VA is not required to "prove" that it did not receive the claims he has alleged that he filed in about May 2004; as a matter of law, it is the Veteran who must rebut the presumption of regularity. He has not done so. Under the law, the earliest possible effective dates, and the appropriate effective dates, are January 26, 2006, which is the date of receipt of his claim (VA Form 21-526). The Court has held that where the law not the evidence is dispositive, the Board should deny an appeal because of an absence of a legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran has failed to allege facts which meet the criteria in the law or regulations, and his claims must be denied. III. The Veterans Claims Assistance Act of 2000 (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In February 2006, VCAA notice was issued in association with the Veteran's claims for service connection. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). These claims were granted in August 2007, and the issues on appeal (i.e., entitlement to earlier effective dates for service connection) arose from these grants of service connection. In such cases, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled; no additional § 5103(a) notice is required. Dingess/Hartman, 19 Vet. App. at 491, 493. Furthermore, and in any event, when the law and not the evidence are dispositive of the claim, the VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000), aff'd, 28 F.3d 1384 (Fed. Cir. 2002). ORDER The issue of entitlement to an initial evaluation in excess of 10 percent for service-connected hearing loss is dismissed. An effective date prior to January 26, 2006, for service connection for a heart disability, a left shoulder disability, and hearing loss, is denied. REMAND With regard to the claim for a right knee disability, the evidence shows that in February 1989, the Veteran sustained a right knee injury while skiing. The RO has denied the claim as the Veteran is not shown to have been on active duty at the time. Therefore, it is critical to determine whether or not the Veteran was on active duty as of the date of his February 1989 right knee injury. In this regard, one of the Veteran's discharges (DD Form 214s) shows that he had active duty from December 1990 to December 1995, with "total prior active service" of 8 years and 2 months. The RO has not determined exactly when the Veteran had prior active service, and the aforementioned discharge indicates that it is possible the Veteran was on active duty in February 1989. The Board notes that a service history from the Air National Guard appears to indicate that the Veteran was on AD (active duty) from December 1988 to December 1989, i.e., it notes 365 days of active duty. As it does not appear that the RO has exhausted all efforts in an attempt to verify the specific beginning and ending dates of the Veteran's period(s) of active duty prior to December 1990, a remand is required. The Board notes that VA's Record Management Center (RMC) houses service records for veterans discharged on or after October 16, 1992; the National Personnel Records Center houses service records for Army veterans discharged before October 16, 1992. See VBA's Adjudication Procedure Manual, M21- 1MR (hereinafter "M21- 1MR"), Part III. As no request to the RMC is documented, such a request should be made. The possibility that such records could contain evidence relevant to the appellant's claim cannot be foreclosed absent a review of those records. Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007). A line of duty report is not of record, and it does not appear that a request for this document has specifically been made. On remand, the RO should request the RMC, and the National Personnel Records Center (NPRC), to provide any line of duty (LOD) determination(s) involving the Veteran's 1989 right knee injury. With regard to the claim for service connection for a skin disability, in May 2007, the Veteran was afforded a VA examination. The report of that examination shows that the Veteran was noted not to currently have a visible rash; there were no other findings of a current skin disorder. No diagnosis was provided. In March 2009, the Veteran was afforded a VA Persian Gulf Protocol examination. The report of that examination shows that there were no skin lesions present, and no other findings of a current skin disorder. When a claimant's medical history indicates that his condition undergoes periods of remission and recurrence, VA is required to provide a medical examination during the period of recurrence in order to provide a proper disability rating. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In Ardison, the Court found that an examination during the remission phase of the condition did not "accurately reflect the elements of the present disability." Id. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The evidence shows that the Veteran has reported that his skin symptoms are intermittent, and that he was asymptomatic on the day of his VA examinations. Accordingly, on remand, the Veteran should be afforded another examination of his skin. With regard to the claims for increased/compensable initial evaluations for coronary artery disease, status post myocardial infarction, and a left shoulder disability, the duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95, 60 Fed. Reg. 43186 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). In this case, during his hearing, held in March 2011, the Veteran testified that his heart and left shoulder symptoms have worsened since his most recent VA examinations (in May 2007). Under the circumstances, on remand, the Veteran should be afforded another examination of his heart, and left shoulder. The Veteran has reported receiving treatment at a VA facility in Bainbridge, New York, and treatment for his heart from a private physician identified as "Dr. Kapur" in Binghamton, New York. On remand, an attempt should be made to obtain these records. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012); see also VAOPGCPREC 12- 95, 60 Fed. Reg. 43186 (1995); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The appellant is hereby notified that it is the appellant's responsibility to report for the examinations, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158 and 3.655 (2012). Finally, in Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), the Court held that when entitlement to a TDIU is raised during the adjudicatory process of an underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability. During the Veteran's March 2011 hearing, the issue of entitlement to TDIU was raised. As such, entitlement to a TDIU is to be considered part of the claim in this case. In this case, the Veteran has not yet been afforded VCAA notice with regard to his TDIU claim. In addition, this issue is considered to be inextricably intertwined with the issues currently on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). Therefore, the TDIU claim should be adjudicated following the adjudication, or other appropriate disposition, of the claims for service connection for skin and right knee disabilities, and increased/compensable evaluations for coronary artery disease, status post myocardial infarction, and a left shoulder disability. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter with respect to the issue of entitlement to TDIU. 2. The RO should ask the RMC to provide them with all of the Veteran's periods of active duty, and any line-of-duty determinations for the Veteran involving his 1989 right knee injury. If the RMC has no records, request that it provide guidance as to where such records might be located, and request records from any location suggested by the RMC. 3. Request the National Personnel Records Center (NPRC) to provide any line-of-duty determination(s) for the Veteran involving his 1989 right knee injury. 4. Ask the Veteran to identify all VA and private health care providers who have treated him for heart, left shoulder, and skin symptoms, after March 2009 (i.e., after the most recent treatment reports of record), to include all treatment at VA in Bainbridge, New York, and all treatment from a private physician identified as Dr. Kapur, in order to determine if relevant records exist that are not currently associated with the claims files. After securing any necessary releases, the RO should attempt to obtain these records. 5. After the development directed in the first four paragraphs of this remand has been completed, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any and all diagnosed skin conditions. The claims folder should be made available to, and reviewed by, the examiner, and the examiner should state that the Veteran's C-file has been reviewed in association with the examination. Provide the examiner with the Veteran's verified periods of active duty. The examiner should identify all skin conditions found. If, and only if, the Veteran is found to currently have one or more diagnosed skin disorders, indicate whether any diagnosed skin condition found is at least as likely as not (i.e., a probability of 50 percent or greater) related to the Veteran's active duty service. Inform the examiner that the term "at least as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The rationale for any opinion expressed should be provided in a legible report. If the examiner cannot provide his or her requested opinion without resort to speculation, he or she should state why that is the case and what evidence, if any, is necessary to provide it. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Also advise the Veteran that should his symptoms be unobservable on the date of his scheduled examination, he should inform VA of that fact and reschedule another examination on another date. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (requiring adequate tinea pedis examination during active stage of the disorder). 6. Schedule the Veteran for a VA examination to ascertain the current severity of his service-connected left shoulder disability. The claims files must be made available to the examiner for a review of the Veteran's pertinent medical history, and the examiner should indicate that the Veteran's C-file has been reviewed in association with the examination. Any necessary diagnostic testing and evaluation should be performed. All clinical manifestations of his shoulder disabilities, including symptoms and resulting complications, and range of motion studies expressed in degrees, should be provided. The examiner should state whether there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups, or when the shoulder is used repeatedly. All limitation of function must be identified. 7. Schedule the Veteran for a VA examination by a physician to determine the current level of impairment due to service-connected coronary artery disease, status post myocardial infarction. The claims files must be made available to the examiner for a review of the Veteran's pertinent medical history, and the examiner should indicate that the Veteran's C-file has been reviewed in association with the examination. If METS testing cannot be done because of medical reasons, the examiner is asked to estimate the level of activity expressed in METS. 8. Readjudicate the issues of entitlement to service connection for right knee and skin disabilities; entitlement to an initial evaluation in excess of 10 percent for cardiovascular disability; and, entitlement to an initial compensable evaluation for left shoulder disability. Readjudication of the initial evaluation claims should include consideration of "staged" ratings. See Fenderson v. West, 12 Vet. App 119 (1999), respectively. The RO must also adjudicate the issue of entitlement to TDIU. If any of the determinations remains unfavorable to the Veteran, issue a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue(s). An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the r matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. R. Kammel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs