Citation Nr: 1325576 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 94-02 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a lung disorder. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection for a left hand scar. 4. Entitlement to service connection for seizures, blackouts, and dizziness. 5. Entitlement to service connection for arthritis of the cervical spine and shoulders, to include as due to radiation exposure. 6. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a heart disorder, including hypertension, to include as due to radiation exposure. 7. Entitlement to an effective date earlier than October 7, 2004, for the grant of entitlement to service connection for tinnitus. 8. Entitlement to an effective date earlier than September 3, 1997, for increased special monthly compensation (SMC). 9. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 23, 1986. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from June 1957 to March 1961 and from April 1961 to August 1977. These matters come before the Board of Veterans' Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In an April 1997 rating decision, the RO declined to reopen a claim for entitlement to service connection for hypertensive cardiovascular disease, concluding that the Veteran had not submitted new and material evidence. Within one year of the April 1997 rating decision, in December 1997, the RO denied applications to reopen claims for service connection for multiple disabilities (including hypertensive cardiovascular disease), entitlement to service connection for multiple disabilities, and an issue characterized as "entitlement to a total rating from the date of military retirement." The Veteran indicated that he disagreed generally with this decision in a December 1997 letter. In a December 1998 decision, the Board noted generally that issues had arisen during the course of the appeal that had not been developed for appellate review and were therefore referred to the RO for appropriate action. In April 2000, counsel for the Veteran and VA filed a Joint Motion with the United States Court of Appeals for Veterans Claims (Court) to vacate and remand the portion of the December 1998 Board decision which it interpreted as referring to the RO a TDIU claim, because, given the Veteran's timely notice of disagreement (NOD), the Board should have remanded rather than referred that claim. In an April 2000 Order, the Court granted the Joint Motion. The Board remanded the claim pursuant to the Joint Motion in November 2000. The Board characterized the claim as a claim for a TDIU. The above RO decisions declined reopening the Veteran's heart disorder claim finding no new and material evidence had been submitted. In a subsequent May 2002 Supplemental Statement of the Case (SSOC), however, the RO reopened the claim and denied it on the merits. Regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92; Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). Thus, the issue on appeal has been characterized as shown above. In April 2003, the Board issued multiple decisions with regard to claims including some of those listed above. In relevant part, the Board denied an application to reopen a claim for entitlement to service connection for a hypertensive cardiovascular disorder and granted an application to reopen a claim for service connection for a lung disorder. In February 2004, counsel for the Veteran and VA filed a Joint Motion with the Court to vacate and remand the April 2003 Board decision with regard to TDIU, which had been recharacterized as a claim for a TDIU prior to August 12, 1993, the date from which the Veteran had subsequently been granted a 100 percent schedular rating. In a February 2004 Order, the Court granted the Joint Motion. In June 2004, counsel for the Veteran and VA filed a Joint Motion with the Court to vacate and remand the April 2003 Board decision denying, in relevant part: (1) entitlement to service connection for arthritis of the cervical spine and shoulders and (2) an application to reopen a claim for service connection for hypertensive cardiovascular disease. In June 2004, the Court granted the Joint Motion. In three separate March 2005 decisions, the Board remanded the TDIU claim, the claims that were the subject of the June 2004 Joint Motion, and the claims for entitlement to service connection for a lung disorder, skin disorder, left hand scar, and seizures, blackouts, and dizziness. In addition, in January 2009, the RO granted entitlement to service connection for tinnitus and also granted entitlement to increased SMC. The Veteran timely challenged the effective dates assigned in connection with each of the benefits that were awarded. As noted in the May 2011 Board decision, the RO failed to address the issue of entitlement to an earlier effective date for the grant of service connection for tinnitus in its August 2009 statement of the case (SOC). In addition to the foregoing, in relevant part the May 2011 Board decision also granted entitlement to TDIU from June 23, 1986 until August 12, 1993, and remanded the issue of entitlement to TDIU prior to June 23, 1986, as well as declining to reopen the Veteran's claim for entitlement to service connection for a heart disorder, including hypertension and for radiation colitis. The May 2011 Board decision otherwise remanded the above claims. In February 2012, counsel for the Veteran and VA filed a Joint Motion with the Court to vacate and remand the portion of the May 2011 Board decision denying an application to reopen a claim for service connection for a heart disorder, including hypertension, to include as due to radiation exposure. In March 2012, the Court granted the Joint Motion. The effective date for the grant of increased SMC was September 10, 2007, at the time of the May 2011 Board remand. However, a September 2011 rating decision determined that an effective date of September 3, 1997, should be established for the Veteran's increased SMC. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). In this case there is somewhat contradictory evidence as to whether the Veteran is satisfied with the effective date assigned for his increased SMC claim. On the one hand, the Veteran has been generally consistent in claiming that his SMC benefits should extend back to the time of his separation from service in 1977 or, at the least, to 1981. By contrast, in an April 2013 statement, the Veteran specifically stated he "is not contesting the 100% Service Connection with Aid and Assistance [f]or (a) blindness[,] (b) PTSD[, (c)] degeneration of the bones in the neck, back arms and [l]egs[,] (d) hearing loss[,] (e) radiation cystis [sic] in the urinary track[,] (f) radiation colitis and TDIU." The Board does not find the above April 2013 statement a clear intent on the Veteran's part to withdraw his claim for an earlier effective date for increased SMC benefits, especially given other clear statements regarding his intention to pursue earlier effective date claims for TDIU and tinnitus (which the Veteran often has used interchangeably with "hearing loss"). Therefore, the claim for an effective date for increased SMC prior to September 3, 1997, remains on appeal to the Board. The Board also recognizes that the issues addressed in a separate May 2011 Board remand, specifically (1) entitlement to fee basis outpatient chelation therapy and (2) entitlement to payment for reimbursement of medical expenses associated with treatment by Community Memorial Hospital (CMH), CMH Emergency Physicians, and South Hill Internal Medicine for the period from February 8, 1997 to February 17, 1997, have not been recertified to the Board by the Richmond, Virginia RO and, as they are the subject of separate RO jurisdiction they will not be addressed further herein. In March 1996, the Veteran testified at a hearing before a decision review officer (DRO); a transcript of that hearing is of record. In April 2010, the Veteran was unable to appear for a scheduled hearing, but the Veteran's then attorney representative presented arguments on his behalf. The transcript of that proceeding is of record. Subsequent to the May 2011 Board decision and remand, the Veteran requested another Board hearing. Consequently a Board hearing was scheduled in May 2013. After receiving notification, the Veteran indicated that he would be unable to attend the hearing in person, but indicated that his designated representative, the American Legion, would "represent the veteran." The Veteran's representative failed to make an appearance at the scheduled Board hearing without the Veteran being present, which is consistent with 38 C.F.R. § 20.700(a) (2012) that indicates that a hearing will not normally be scheduled solely for the purpose of receiving argument by a representative unless good cause for so doing is shown. In this case, the Veteran and his representative have made no argument contending that there is good cause for a hearing for the purpose of accepting argument from the Veteran's representative. Instead, since the scheduled May 2013 Board hearing the Veteran and his representative have submitted numerous written documents setting forth the Veteran's contentions, which is specifically noted to be the preferred method for submitting evidence and argument in the absence of the Veteran. See id. In light of the foregoing, the Board considers the Veteran's request for a Board hearing to be withdrawn. See 38 C.F.R. § 20.700(e). With respect to the additional evidence and argument submitted by the Veteran since the last supplemental statement of the case (SSOC), in a June 2013 statement the Veteran's representative requested that the documents received be considered by the Board and waived initial consideration by the agency of original jurisdiction (AOJ) in accordance with the requirements of 38 C.F.R. § 20.1304 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claims for entitlement to service connection for a lung disorder, a skin disorder, left hand scar, seizures, blackouts and dizziness, and arthritis of the cervical spine and shoulders, entitlement to an earlier effective date for increased SMC, and entitlement to a TDIU prior to June 23, 1986, 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. In a February 1990 decision, the Board denied claims for service connection for a heart disorder, to include hypertension. The Veteran's appeal of this decision was dismissed by the Court, and his appeal of the Court's decision was dismissed by the United States Court of Appeals for the Federal Circuit (Federal Circuit). 2. Evidence received since the February 1990 Board decision relating to the heart disorder claim is cumulative and redundant. 3. A claim for entitlement to service connection for tinnitus was first received from the Veteran on September 3, 1997, and it is found that he has met the criteria for tinnitus since that date. CONCLUSIONS OF LAW 1. The Board's February 1990 decision denying the claim for entitlement to service connection for a heart disorder, including hypertension, is final. 38 U.S.C.A. §§ 7103(a), 7104(a) (West 2002); 38 C.F.R § 20.1100(a) (2012). 2. Evidence received since the February 1990 decision is not new and material and the claim for entitlement to service connection for a heart disorder, including hypertension, is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001). 3. An effective date of September 3, 1997, is warranted for the grant of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board initially wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with Fletcher in mind. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the claim for an earlier effective date for tinnitus, as noted above, this claim arises from the Veteran's disagreement with the effective date assigned in connection with the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating or an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Thus, further discussion of the VCAA with regard to the claim for an earlier effective date for tinnitus is unnecessary. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in the context of an application to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Id. at 11-12. Further, VA is required, in response to an application to reopen, to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. As to the application to reopen, a May 2005 letter complied with Kent for the following reasons: first, the RO explained how to establish entitlement to the underlying benefit sought, i.e., service connection; second, the RO explained that the Veteran had to submit new and material evidence to reopen his claim and defined these terms; third, the RO explained that the Veteran's claim for entitlement to service connection for hypertensive cardiovascular disease had previously been denied because there was no evidence that the disability had occurred in or been caused by service, and that the evidence he submitted would therefore have to relate to this fact. In addition, the May 2005 letter complied with the VCAA's other, more general notification requirements with regard to the application to reopen. In this letter, the RO explained how to establish entitlement to service connection. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). As the May 2005 letter complied with the VCAA generally and Kent specifically with regard to the application to reopen, the RO complied with the Board's March 2005 remand instructions, which included an instruction that the RO send a VCAA compliant letter with respect to the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records, as well as the records of the Social Security Administration's (SSA's) disability determination. The parties to the Joint Motion found that with regard to the claims denied in the April 2003 Board decision including the applications to reopen, VA had not satisfied the VCAA's duty to assist requirements because of the possibility that there were outstanding outpatient treatment records from the Richmond VA Medical Center (VAMC). Pursuant to this finding, the Board in its March 2005 remand instructed the RO to attempt to obtain any pertinent evidence identified but not provided by the Veteran. The RO's May 2005 letter asked the Veteran if he was treated at a VAMC and, if so, to tell the RO when and where, and it would request reports of that treatment for him. Neither the Veteran nor his then attorney representative (who received a copy of this letter) indicated in response that the Veteran had received treatment at a VAMC, or that there were outstanding treatment records in addition to those from the Richmond VAMC that had already been obtained. Consequently, the RO was not required to take further action, see 38 C.F.R. § 3.159(c)(2)(i) (claimant must cooperate fully with VA's reasonable efforts to obtain relevant federal records including providing information regarding location and approximate time frame of records), and complied with the Board's remand instructions in this regard. Stegall, 11 Vet. App. at 271. As to the Veteran's earlier effective date claim, the outcome of this appeal turns on a determination as to the date a claim of service connection was filed. The Veteran's various applications for benefits are of record, as are all the pertinent procedural documents. There is no suggestion that additional evidence, relevant to these matters, exists and can be procured. No further development action is required. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to the application to reopen and the claim for an earlier effective date for service connection for tinnitus. These claims are thus ready to be considered on the merits. New and Material Evidence Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2012). The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a) (2012). Generally, a claim denied by the Board is final and may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7103(a), 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2012). One exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). The definition of new and material evidence was modified by a regulatory amendment, see 66 Fed. Reg. 45620 (2001), with respect to claims to reopen filed on or after August 29, 2001. As the claim to reopen in this matter was filed prior to August 29, 2001, the changes in 38 C.F.R. § 3.156 (2012) are inapplicable to the instant matter. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In a February 1990 decision, the Board denied, among other things, entitlement to service connection for a heart disorder, including hypertension. The Veteran appealed to the Court and in March 1992, the Court dismissed the appeal. The Veteran appealed to the Federal Circuit, and in March 1993, the Federal Circuit dismissed the appeal. Consequently, the February 1990 Board decision became final, and new and material evidence is required to reopen the claim for service connection. 38 U.S.C.A. §§ 5108, 7103(a), 7104(a); 38 C.F.R. §§ 3.156(a), 20.1100(a). In the February 1990 decision, the Board noted that, while a corpsman in January 1976 indicated in an unsigned report that a diagnostic test consistent with chronic congestive heart failure was made in October 1974, members of the cardiology service in February 1977 (in conjunction with a Medical Board Evaluation) indicated that there was no evidence of coronary artery disease as an etiology of chest pain complaints by the Veteran during service. The Board noted that, on VA examination of October 1986, the Veteran was diagnosed with hypertensive cardiovascular disorder and coronary insufficiency, but denied the claim because heart disease (to include hypertension) was not present in service or manifest to a compensable degree within one year of service. The evidence received since the February 1990 Board decision includes the report of an August 1996 VA examination; VA treatment records; private treatment records; records from SSA; statements by the Veteran's representatives, including at the April 2010 Board hearing; and various contentions made by the Veteran, to include his testimony given during the March 1996 RO hearing. The findings on the August 1996 VA examination included that the Veteran's heart had regular sinus rhythm and no murmurs, and that an electrocardiogram (ECG) confirmed a diagnosis of septal myocardial infarction. As a result of this examination, the Veteran was diagnosed with coronary artery disease, Class IV angina, and a previous history of anteroseptal myocardial infarction with no symptoms of left ventricular dysfunction. During the March 1996 RO hearing, the Veteran testified that he had high blood pressure during service and was given medication for this condition and that he was told that he had chronic congestive heart failure in 1974 but was not hospitalized. In various statements of record, the Veteran and his representatives (including his prior attorney representatives) have essentially contended that the complaints of chest pain in service and the notation of chronic congestive heart failure in the above-referenced service report demonstrated that the Veteran indeed suffered from heart disease in service and that this was supported by the post-service medical evidence. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the following reasons, the Board finds that the evidence received since the last prior final denial does not meet the low threshold for reopening because it is essentially cumulative of the evidence before the Board at the time of its February 1990 denial. At the time of the February 1990 denial, the evidence before the Board included post service diagnoses of hypertensive cardiovascular disease, coronary insufficiency, and angina, as well as the evidence of in-service heart symptoms. The Board considered this evidence and found that the cardiovascular disease, including hypertension, was not related to service and did not manifest during the one year presumptive period. None of the evidence received since then indicates otherwise. To the extent that the Veteran and his representatives have stated their belief that his current cardiovascular disease, including hypertension, are related to service, these statements do not constitute new and material evidence for two reasons. First, most of these contentions were before the Board at the time of the February 1990 denial. Moreover, although these statements are presumed to be credible, they are not presumed to be competent. Lay witnesses are competent to testify as to some medical matters, including diagnoses and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The question of whether the cardiovascular or hypertension disease process began in service, including as a result of ionizing radiation, is one of the types of medical matters that the courts have found to be beyond the competence of lay witnesses. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Board also has considered the directions of the February 2012 JMR to consider whether two letters received by the RO in August 1978 from the Veteran, "could be construed as expressing disagreement with the July 26, 1978 decision." In that regard, the RO originally denied entitlement to service connection for a heart disability with murmur and chest pain in a July 26, 1978 rating decision. In letters dated August 3, 1978 and August 4, 1978 (both received by VA on August 8, 1978), the Veteran referenced the July 1978 rating decision and indicated that he believed certain facts should be "brought to your attention." The August 4, 1978 letter discussed radiation and certain health problems unrelated to his heart. The August 3, 1978 letter, by contrast, specifically noted that, "the health records show where I had two heart attackes [sic] in service..." and also stated, "In closing I would appreciate if the additional facts were taken into consideration and an appropr[i]ate decision is made." Even were the Board to presume that one or both of the August 3 and 4, 1978 letters should have been construed as a notice of disagreement pursuant to the then applicable regulations (38 C.F.R. § 19.113 (1965)), as discussed above the Veteran's heart claim was subsequently adjudicated by the RO and considered in the February 1990 final Board decision as an original claim for entitlement to service connection, rather than as a petition to reopen a claim for entitlement to service connection based on the provision of new and material evidence. As such, any earlier, pending claim for entitlement to service connection for a heart disability would have been subsumed by this final February 1990 Board decision. See Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008) (a subsequent final adjudication of a claim which is identical to a pending claim that had not been finally adjudicated terminates the pending status of the earlier claim, and the later disposition, denying the claim on its merits also decides that the earlier identical claim must fail). Thus, the August 3 and/or 4, 1978 statements from the Veteran and their characterization as notice(s) of disagreement are moot in light of the subsequent adjudication of the issue of entitlement to service connection for a heart disability, to include hypertension, in the final February 1990 Board decision. The Board also notes in closing the case of Woehlaert v. Nicholson, 21 Vet. App. 456 (2007), wherein a veteran argued that the Board was obligated to reopen his claim because the RO had arranged for an examination, and that the examination in question was inadequate. In that decision, the Court held that the Board was not obligated to reopen a claim merely because the RO reopened the claim and undertook development such as obtaining a new examination or opinion. Furthermore, the Court also held that the adequacy of any such examination or opinion is moot if the Board determines that new and material evidence has not been presented, although the Board must certainly consider the results of such an examination or opinion as it would any evidence of record. In this case, the Board has reviewed the results of the examination, and concluded that it does not constitute new and material evidence to reopen the claim. Furthermore, pursuant to the holding in Woehlaert, the mere act by the RO of providing an examination did not require the Board to reopen the claim. Consequently, as there is no competent, non-cumulative evidence relating to the bases for the prior denial of entitlement to service connection for a heart disorder including hypertension, to include as due to exposure to ionizing radiation, new and material evidence sufficient to reopen this claim has not been received. Reopening of the claim, therefore, is not warranted. Earlier Effective Date The Veteran claims that he is entitled to an effective date prior to October 7, 2004, for the grant of entitlement to service connection for tinnitus. Generally, the effective date of an award based on an original claim or a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 2002). If a claim for service connection is received within a year following separation from service, the effective date will be the day following separation from service. 38 U.S.C.A. § 5110(b)(1). Otherwise, the effective date is to be "fixed in accordance with the facts found," but cannot be earlier than the date of receipt of the claim for the benefit that was granted. 38 U.S.C.A. § 5110(a). The implementing regulation provides that the effective date of the grant of "direct service connection" is the day following separation from service "or the date entitlement arose" if the claim is received within one year after separation from service, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Otherwise the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. Id. A claim for an earlier effective date must generally come before the Board as a result of a timely appeal from a decision granting service connection or an increased rating, because a veteran cannot make a freestanding claim for an earlier effective date absent a claim of CUE in a prior rating decision. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). In this case, the earlier effective date claim being decided herein arises from the Veteran's timely appeal from the January 2009 rating decision granting service connection for tinnitus and assigning an effective date of October 7, 2004. The Board notes that the Veteran has raised a large number of claims since shortly after his August 1977 retirement. A corollary to the prescription against freestanding effective date claims described in Rudd is that once an RO or Board decision denying a claim for entitlement to service connection or an increased rating (including a TDIU) becomes final, an effective date assigned in connection with a subsequently filed claim for that benefit must be based on the date of the subsequently filed claim. In the case of an application to reopen a previously denied claim for entitlement to service connection, the statute provides that the effective date is to be "fixed in accordance with the facts found," but cannot be earlier than the date of receipt of the claim for the benefit that was granted. 38 U.S.C.A. § 5110(a). The regulation provides that with regard to both new and material evidence other than service department records received after final disallowance and reopened claims, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q)(2),(r). The courts have interpreted the statute and regulation as generally prohibiting an effective date assigned in connection with the grant of an application to reopen prior to the date of the application to reopen. See Leonard v. Nicholson, 405 F.3d 1333, 1336 (citing Sears v. Principi, 349 F.3d 1326, 1332 (Fed. Cir. 2003)). The Veteran's first reference to tinnitus was in a statement received on September 3, 1997. In that statement, the Veteran claimed that he had tinnitus due to service. Specifically, the Veteran noted that he had reported constant ringing in the ears to medical professionals both on active duty and at VA. The RO denied the claim for entitlement to service connection for tinnitus in December 1997, and that claim remained in appellate status until it was granted by the RO in its January 2009 rating decision. The RO assigned an effective date of October 7, 2004, the first date on which there was objective evidence of recurrent tinnitus. At that time, during a patient needs assessment, the Veteran first reported tinnitus. Thereafter, the Veteran intermittently reported complaints of tinnitus. In this case the Veteran's claim for service connection was received more than a year after discharge from service. Accordingly, the effective date for the grant of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In general, if a condition noted during service is not shown to be chronic, then a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran's claimed tinnitus, however, is not a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply as to that claim. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The above notwithstanding, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination that is "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007) ; see also Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002) ("ringing in the ears is capable of lay observation"). In this case, the Board does have concerns regarding the precise onset of the Veteran's tinnitus disorder. While the Veteran now claims that his tinnitus began during service multiple subsequent examinations including, for example, an October 1986 VA examination report, found no ear problems. That said, the RO has found the Veteran's reported tinnitus to be credible evidence and that the evidence of record is sufficient to link the Veteran's tinnitus with his military service. As noted above, tinnitus is the type of disability that is capable of lay observation and the Veteran has reported such symptomatology from the time of his claim, received on September 3, 1997. Based on the foregoing and weighing all doubt in favor of the Veteran, the Board concludes that the Veteran has had tinnitus since at least the date of receipt of his claim for service connection. Consequently the Board finds that the Veteran is entitled to the date of his claim for the grant of service connection for tinnitus. Accordingly, an effective date of September 3, 1997, is warranted for the grant of service connection for tinnitus. ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for a heart disorder, including hypertension, to include as due to radiation exposure, has not been received and, therefore, the claim is denied. An effective date of September 3, 1997, is granted for the award of entitlement to service connection for tinnitus. REMAND The Veteran also is seeking entitlement to service connection for a lung disorder, a skin disorder, left hand scar, seizures, blackouts and dizziness, and arthritis of the cervical spine and shoulders, entitlement to an earlier effective date for increased SMC, as well as entitlement to a TDIU prior to June 23, 1986. Despite the extensive procedural development, the Board finds that the claims must again be remanded. The Veteran's claims were remanded by the Board in May 2011 to obtain VA examinations for the Veteran's service connection claims and to refer the Veteran's TDIU claim to VA's Director, Compensation Service, (formerly Director of Compensation and Pension) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). In an effort to comply with the remand instructions, the Veteran was afforded VA examinations for the above service connection claims in June 2012. In addition, the Veteran's TDIU claim was referred to VA's Director, Compensation Service, in June 2012. However, a response from the Director, Compensation Service, is not of record, nor is there evidence that the RO readjudicated any of the above claims other than the claim for entitlement to an earlier effective date for increased SMC. The confusion may stem from February 2013 correspondence from a representative of the Board indicating that only the issue of entitlement to an effective date earlier than October 7, 2004, for the grant of entitlement to service connection for tinnitus, need be certified. This conclusion clearly was in error. While the Board regrets the additional delay posed by another remand of these issues, as evidence of consideration of an extraschedular rating for TDIU by the Director, Compensation Service, is not of record and the above service connection claims have not been readjudicated following the June 2012 VA examinations, remand of the issues is the only available course of action. As to the Veteran's claim for an effective date earlier than September 3, 1997, for increased SMC, as discussed above the September 2011 RO decision granted an effective date of September 3, 1997, where the prior effective date had been September 10, 2007. The September 2011 rating decision specifically noted that the grant of an effective date of September 3, 1997 represented a partial grant of the Veteran's claim. That said, the RO never adjudicated the merits of the Veteran's claim for an effective date earlier than September 3, 1997. As such, a remand is required to afford the RO the opportunity to adjudicate this aspect of the Veteran's claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. If a response to the June 2012 referral to VA's Director, Compensation Service, for consideration of an extraschedular rating has been received, associate the response with the claims file. 2. If no response to the June 2012 referral has been received, refer again the claim for a TDIU prior to June 23, 1986 to VA's Director, Compensation Service, for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b) (2012). 3. After completion of the foregoing, readjudicate the Veteran's service connection claims, TDIU claim, and entitlement to an effective date earlier than September 10, 1997 for increased SMC, to include consideration of the June 2012 VA examination reports. If a complete grant of the benefits requested as to each issue is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ Robert E. P. Jones Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs