Citation Nr: 1615440 Decision Date: 04/15/16 Archive Date: 04/26/16 DOCKET NO. 11-09 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than February 14, 2008, for the grant of service connection for Chronic Obstructive Pulmonary Disease (COPD) associated with pulmonary tuberculosis. 2. Entitlement to a compensable disability rating for the service-connected pulmonary tuberculosis. 3. Entitlement to a disability rating higher than 30 percent for service-connected vestibular dysfunction. 4. Entitlement to an initial disability rating higher than 30 percent for a service-connected hiatal hernia. 5. Entitlement to an initial compensable disability rating for service-connected rhinitis prior to September 20, 2012, and a disability rating higher than 10 percent since. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to October 1957. This appeal to the Board of Veterans' Appeals (Board/BVA) is from December 2008 and December 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of that proceeding is of record. Subsequently, in May 2012, the Board denied the claim for an earlier effective date for the grant of service connection for the COPD associated with the pulmonary tuberculosis. But the Board, instead, remanded the remaining claims for further development, including the provision of VA compensation examinations. The Veteran since has had these additional examinations in September 2012, but after considering the results, the RO or Appeals Management Center (AMC) issued a Supplemental Statement of the Case (SSOC) in December 2013 continuing to deny the claims and returned them to the Board for further appellate consideration. In the intervening time since the Board's May 2012 decision and remand, however, a settlement was reached between VA and the National Organization of Veterans' Advocates, Inc. (NOVA), which essentially found that the provisions of 38 C.F.R. § 3.103(c) are applicable to hearings conducted by members of the Board. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a VLJ has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position). Because these provisions had not been adequately followed in all Board hearings, potentially-affected Veterans were given the opportunity to have any affected decision vacated and to have another hearing. The Board consequently sent the Veteran a letter in September 2013 notifying him of this opportunity to receive a new decision from the Board that would correct any potential due process error relating to the duties of the VLJ that had presided over the November 2011 hearing. The Veteran responded in September 2013 that he wanted to have the issue of whether he is entitled to an earlier effective date for the grant of service connection for his COPD associated with his pulmonary tuberculosis, which was decided by the Board in May 2012, vacated, and to have another hearing on this claim. A June 2014 Board decision accordingly vacated the portion of the May 2012 Board decision that had denied entitlement to an effective date earlier than February 14, 2008 for the grant of service connection for COPD. Thereafter, in August 2014, the Board remanded this claim of entitlement to an earlier effective date for the grant of service connection for COPD, as well as the other claims listed, to the RO - since the Agency of Original Jurisdiction (AOJ) - to schedule the Veteran for a hearing at the RO before a VLJ of the Board, in other words for a Travel Board hearing. This additional hearing initially was scheduled to be held in October 2014 but was postponed. The RO duly sent another letter to the Veteran in December 2014 informing him that his hearing was rescheduled for January 2015. He submitted a response in December 2014, however, so prior to the rescheduled date of that anticipated hearing, informing the RO that he was unable to personally appear at or present testimony at that rescheduled hearing. In lieu of another hearing, he submitted an affidavit regarding his claims; he also waived any/all future "right to appear" at another hearing. In July 2015 the Veteran's representative informed VA to adjudicate the current appeal based on the evidence of record since the Veteran cannot travel to another VA hearing. The file, therefore, was returned to the Board for further appellate consideration of the claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The claims of entitlement to higher disability ratings for the vestibular dysfunction, hiatal hernia, and rhinitis, also derivatively for a TDIU, require further development before being decided on appeal. So the Board is REMANDING these claims to the AOJ. FINDINGS OF FACT 1. The claims file does not contain any communication or evidence received prior to May 2003 that could be interpreted as a formal or informal claim of entitlement to service connection for COPD. Moreover, the Veteran subsequently withdrew his claim of entitlement to service connection for COPD in a July 2004 written statement, and he did not again file a claim for this disease until February 14, 2008. 2. The preponderance of the evidence shows that his pulmonary tuberculosis is currently inactive, and his service-connected COPD that is associated with this pulmonary tuberculosis has been evaluated as 100-percent disabling under Diagnostic Code 6604 throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria are not met for an effective dated earlier than February 14, 2008, for the grant of service connection for the COPD. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.104(a), 3.151, 3.155, 3.157, 3.400 (2015). 2. The schedular criteria also are not met for a compensable disability rating for the inactive pulmonary tuberculosis. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.97, Diagnostic Codes 6600 and 6724 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has duties to notify and assist a claimant in developing and substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). More specifically, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. Ideally, this notice should precede the initial unfavorable decision on a claim by the AOJ, which in this instance is the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). But if notice was not provided prior to initially adjudicating a claim, or if provided it was inadequate or incomplete, VA can rectify ("cure") this deficient notice by providing all required notice and then readjudicating the claim - including in a Statement of the Case (SOC) or Supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, in that the Veteran is still given meaningful opportunity to participate effectively in the development of his claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006); Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). Regarding the Veteran's claim for an earlier effective date the grant of service connection for his COPD, he is appealing the initial effective date assigned for this disease in the December 2009 rating decision granting entitlement to service connection for this disease. Therefore, the service-connection claim has been substantiated, so proven. His filing of a Notice of Disagreement (NOD) as concerning the effective date assigned for his COPD in the December 2009 rating decision is in regards to a "downstream" issue and, therefore, does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, his appeal triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of an NOD in response to a decision on a claim, the AOJ must take development or review action it deems proper under applicable regulations and issue an SOC if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the NOD. If VA receives an NOD in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue an SOC if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly-raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2015). The Veteran received the required SOC concerning this "downstream" earlier effective date claim, so he has received all required notice concerning this claim in its different guises. See Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The March 2011 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," advised the Veteran of the information and evidence needed to substantiate his "downstream" earlier effective date claim. The SOC also informed him of the statutes and regulations governing assignment of effective dates. Therefore, to reiterate, VA has satisfied its obligation to notify him as concerning this claim. With respect to the Veteran's increased-rating claim for pulmonary tuberculosis, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate the claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be Veteran specific, or refer to the effect of the disability on "daily life"). To this end, a letter dated in October 2008 satisfied the duty to notify provisions prior to the initial AOJ decision, so in the preferred sequence. Specifically, the letter informed the Veteran that he should submit evidence showing his service-connected pulmonary tuberculosis has increased in severity. He was notified of the types of medical or lay evidence that was for consideration in rating this disability at issue, including evidence as to the impact of this disability on his employment and daily life. Furthermore, the letter informed him of the evidence that VA would seek to provide versus the information and evidence he was expected to provide, himself, in substantiating his claim. As for VA's duty to assist, this additional obligation also has been satisfied. VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of his claims. The file contains his service treatment records (STRs), private treatment records, VA treatment records, VA examination reports dated in November 2009 and September 2012, lay statements from him, and the transcript of his November 2011 hearing. The VA examination reports reflect that the examiners reviewed the claims file for the pertinent history of these disabilities, obtained an oral history from the Veteran, and evaluated him with respect to his pulmonary tuberculosis to assess its severity. The examiners documented the Veteran's symptoms and the effect those symptoms on his daily life, including ability to work. Accordingly, the VA examinations are adequate for rating purposes such that additional examination is not required. See Barr v. Nicholson, 21 Vet. App. 303 (2007). See also 38 C.F.R. § 4.2. The Veteran also as mentioned was afforded a hearing before the undersigned VLJ in November 2011, during which the Veteran presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court/CAVC) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position. Because of the holdings in this very case, the Board gave the Veteran opportunity to have another hearing, but he ultimately declined. In any event, during the hearing, including especially in the questioning and responses, he and his representative evidenced their actual knowledge of the type of evidence and information needed to substantiate the claims. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). In addition, as already alluded to, the increased-rating claim for the pulmonary tuberculosis was remanded in May 2012 to have the Veteran undergo another VA compensation examination reassessing the severity of this disability. He was provided this additional VA examination in September 2012. Thereafter, the Board remanded the Veteran's earlier-effective-date claim and the increased-rating claim for the pulmonary tuberculosis again in August 2014, this time however to schedule him for the additional hearing before the Board owing to the holdings in Bryant. And, as mentioned, the hearing scheduled for October 2014 was postponed. A letter later sent to him in December 2014 shows he the hearing was rescheduled for January 2015. But he ultimately declined his opportunity for this additional hearing in a December 2014 letter. Consequently, there has been compliance - certainly substantial compliance - with the Board's May 2012 and August 2014 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Regarding the Veteran's earlier-effective-date claim, all the pertinent evidence is already of record. As will be discussed, resolution of this claim ultimately turns on when it was re-filed, so a VA compensation examination and "retrospective" medical opinion are not needed to assist in deciding this claim. Chotta v. Peake, 22 Vet. App. 80 (2008). In light of the above and all that has occurred, further development of these claims would serve no useful purpose. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any meaningful or useful purpose or result in any significant benefit to the Veteran). II. Criteria and Analysis for the Earlier-Effective-Date Claim The RO granted entitlement to service connection for COPD and assigned the highest possible 100 percent disability rating, effective February 14, 2008, in a December 2009 rating decision. The Veteran disagrees with this effective date assigned for his COPD, arguing that it should go back to 1975 when he filed a claim for a respiratory disorder or, in the alternative, 2003 since the date of the VA examination that diagnosed this specific disease. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) 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 later. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose, whichever is later. So if the Veteran did not file a claim for the disability at issue within one year of his discharge from service, the earliest possible effective date he may receive is when he eventually filed a claim. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "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). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, but need not be specific. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Additionally, under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran may file an informal claim by communicating an intent to apply for one or more VA benefits. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Also, according to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of informal claim. 38 C.F.R. § 3.157(b). Turning now to the specific facts and procedural history of this particular case, the Veteran did not file a claim for service connection for COPD within one year of his discharge from service, meaning by October 1958. His initial claim at time of separation, instead, concerned only his pulmonary tuberculosis (TB) that had been diagnosed and treated extensively during his military service, including while hospitalized, and which unfortunately had resulted in him being medically discharged from service and placed on the temporary disability retirement list (TDRL). He listed the nature of diseases or injuries for which his claim was being made and the date each had begun as "Tuberculosis - Feb. 18, 1957" in his initial claim application (on VA Form 8-526e), which he signed and dated in August 1957 and which was date stamped as received by VA in November 1957. There was no express or implied mention of COPD, specifically, or even of emphysema, lung disorder, or respiratory disorder more generally. The Court has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of Title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission."). A claimant may satisfy the requirement of filing a claim for a particular disability by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim). In both Brokowski and Clemons, the Court recognized the need to consider the Veteran's claim in the context of his reported symptoms, not just on the basis of specific diagnoses. But that said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. That is to say, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Here, indeed, it appears that the Veteran does not argue that his initial claim at time of his separation from service in 1957 was also for COPD (rather than just for pulmonary TB). Instead, he asserted in his April 2011 Substantive Appeal and during his November 2011 hearing before the Board that the service-connection claims he much later filed in February 1975 included COPD, so he believes the effective date of the eventual grant of service connection for this condition should go back to the date of receipt of that earlier claim - especially since that earlier claim had remained pending until the eventual grant of service connection. But according to the actual statements, pleadings and supporting evidence of record, the service-connection claims the Veteran filed in February 1975 were for hiatal hernia, chronic gastritis, left ear tinnitus, an arthritic or rheumatic condition affecting his left shoulder blade, and sinusitis/rhinitis, all of which he contended were associated with his pulmonary TB. The claim did not (as he is now alleging) include COPD or a respiratory/lung disorder as there was no expressed or implied mention of COPD, including of it also being associated with his pulmonary TB. To the contrary, he was very specific in discussing exactly what disabilities for which he was claiming entitlement to service connection in February 1975. In fact, he went to great lengths to discuss his specific symptoms associated with each claimed disability. He did not assert service connection for a respiratory or lung disorder, nor did he describe any symptoms that could be reasonably ascribed or related to COPD or a lung/respiratory disorder. Accordingly, that prior claim did not include any express or implied mention of COPD as an additional complication, result, or consequence of the pulmonary TB he unfortunately had contracted in service. See 38 C.F.R. § 3.310(a) and (b) permitting the granting of service connection on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. The effective date for a secondarily service-connected condition is not identical to that of the original condition; the effective date could arise no earlier than the date on which appellant applied for benefits for the [secondary] condition at issue. Ellington v. Nicholson, 541 F.3d 1364 (Fed. Cir. 2008). See also Ross v. Peake, 21 Vet. App. 528 (2008) (The effective date assigned for a secondary service-connected condition does not have to be the same as the effective date for the underlying condition simply because 38 C.F.R. § 3.310 states that a "secondary condition shall be considered a part of the original condition.") Following the denial of those February 1975 claims in November 1975, the Veteran submitted a timely NOD in November 1975 and in January 1976, to initiate an appeal of those claims to the Board. See 38 C.F.R. § 20.201 (2015). See also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task). And as he pointed out during his November 2011 Board hearing, he was not provided an SOC in response to disagreeing with the November 1975 rating decision. Accordingly, he was denied due process and the right to complete the steps necessary to perfect his appeal of those earlier claims to the Board. 38 C.F.R. §§ 19.26, 19.29, 19.30. See also Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, those claims remain pending for purposes of determining the effective date for those disabilities since they were not finally adjudicated. See Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) and McGrath v. Gober, 14 Vet. App. 28, 35 (2000). But this rule regarding pendency of claims only applies to the claims that were actually filed in February 1975, which, as discussed above, did not include a claim for service connection for COPD. There was no similarly-filed or pending claim for COPD as he had not made any specific, express or implied reference to this disease. Although he submitted supporting lay statements with the February 1975 claim, including from his wife, and referred to records of his medical evaluation and treatment for his claimed disabilities, it is not permissible to accept those records as an informal claim under 38 C.F.R. §§ 3.155 and 3.157 where the claims, as here, were for service connection. Rather, these regulations only apply to claims for higher ratings for already established service-connected disabilities. Furthermore, these identified and submitted records did not concern or pertain to COPD. In a July 1975 statement of claim, the Veteran referenced bronchoiogram and bronchoscope procedures performed during his military service in the course of his evaluation and treatment for his pulmonary TB. There was no indicating in this statement that he was requesting service connection for a separate respiratory disorder to include COPD. And when expounding on this during his more recent hearing before the Board in November 2011, he explained that he had relevant complaints while in service, including of shortness of breath, that it was suspected he may have had bronchitis, and that the "old way" of working up a patient such as him, which he twice had in service, was not specifically to determine whether there was COPD, although he indicated nonetheless that there supposedly was a positive finding of emphysema while in service. But, again, there was no mention of consequent COPD either when filing his initial claim for VA benefits in 1957 or even when filing the additional claims in 1975. The United Stated Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157. Rather, according to the Federal Circuit Court, "a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability." MacPhee at 1327 (bold type added for emphasis); see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"); 38 C.F.R. § 3.155(a) ("Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs . . . may be considered an informal claim. Such informal claim must identify the benefit sought."). The record during the intervening years from 1975 to 2003 is completely devoid for any communications or findings referable to COPD or a claim of entitlement to service connection for this condition, including as secondary to the already service-connected pulmonary TB. A September 2002 Statement in Support of Claim (on VA Form 21-4138) reveals that the Veteran claimed entitlement to service connection for chronic allergic rhinitis, accompanying sinusitis and asthmatic breathing problems. Allergic rhinitis is now a service-connected disability. Moreover, because he initially had filed a claim for this condition in February 1975, as well as for hiatal hernia, reflux esophagitis, sphincter narrowing/scarring, gastritis and ulcer disease, the effective date of the eventual grant of service connection for these disabilities was made retroactively effective from the February 1975 claim as it was determined that those claims were still pending. This may be the reason he kept referencing the Board's acknowledgment in the April 2008 decision of the pending claims in February 1975. However, there conversely was no prior or unadjudicated claim for COPD in February 1975. The evidence of record, instead, reflects that the first mention of COPD was not until a VA examiner determined during a May 2003 examination for the Veteran's pulmonary TB that he also had COPD due to his pulmonary TB. In a July 2003 letter, the RO resultantly acknowledged an implied claim for service connection for COPD, apparently based on that May 2003 VA examiner's diagnosis attributing the COPD to the service-connected pulmonary TB, as there was no communication from the Veteran, himself, referencing or alleging his entitlement to service connection for COPD, including on a secondary basis. See again 38 C.F.R. § 3.310(a) and (b) (permitting service connection on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability). The RO received the Veteran's formal claim of entitlement to service connection for diminished pulmonary function a relatively short time later, in August 2003. He asserted that he had had breathing problems since his military service in 1957. But before the completion of the processing and adjudication of that claim, he submitted a VA Form 21-4138, which VA received on July 12, 2004, indicating he was withdrawing the pending service-connection claim for COPD. See 38 C.F.R. § 20.204. He nonetheless noted that he was reserving the right to re-file this claim at some later date after the pending Board hearing on multiple digestive dysfunctions, et. al., which he had addressed in a VA Form 9 filed in May 2004. Once must bear in mind, however, a properly withdrawn claim ceases to exist. See Hanson v. Brown, 9 Vet. App. 29, 32 (1996) (holding that "Veterans are as free to withdraw claims as they are to file them. When claims are withdrawn, they cease to exist."). In May 2005, subsequent to the withdrawal of his service-connection claim for COPD, private clinical records dating back to June 2004 regarding treatment for severe COPD were received. Nevertheless, the records were not submitted in conjunction with any COPD claim and they may not be considered in any event as communication for purposes of an informal claim. See 38 C.F.R. § 3.157. See also Lalonde v. West, 12 Vet. App. 377 (1999) (the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was eventually awarded was filed with VA). The next communication concerning a claim of entitlement to service connection for COPD was not until February 14, 2008, when the RO received a VA Form 21-4138. In that correspondence, the Veteran claimed entitlement to service connection for a respiratory disease, severe COPD. The December 2009 rating decision at issue granted service connection for COPD secondary to his service-connected pulmonary TB and assigned the highest possible rating of 100 percent retroactively effective from February 14, 2008, on the premise that this was the date of receipt of the re-filed claim following the prior withdrawal and abandonment of the COPD claim in July 2004. For these reasons and bases, the Board finds the earliest possible effective date the Veteran may receive for the eventual grant of service connection for COPD is February 14, 2008, when he re-filed the successful petition to reopen this claim. In Sears v. Principi, 16 Vet. App. 244, 248 (2002), the Court held that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on his earlier claim, he has to show clear and unmistakable error (CUE) in the prior denial of that claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). When such a free-standing claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. But the dismissal should be without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). Here, though, the Veteran has not made any such pleading or allegation. The proper effective date for a claim reopened on the basis of new and material evidence, other than STRs, received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). The preponderance of the evidence is against the Veteran's claim for an effective date earlier than February 14, 2008, for the award of service connection for his COPD associated with his service-connected pulmonary TB. Accordingly, entitlement to an effective date earlier than February 14, 2008 for the grant of service connection for COPD is not warranted. III. Criteria and Analysis for Increased-Rating Claim Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal arose from the initially-assigned rating, consideration must be given as to whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the grant if there have been occasions when the disability has been more severe than at others. This change in rating, over time, will compensate the Veteran for this variance. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, a staged rating is appropriate in any increased-rating claim, so even in the case of an established rather than initial rating, when there are distinct time periods when different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran filed an increased-rating claim for his pulmonary TB in February 2008. This disability is currently rated as 0-percent disabling, so noncompensable, under Diagnostic Code 6723, which provides the rating criteria for chronic, unspecified advancement, inactive, pulmonary TB. Under Diagnostic Code 6723, a Veteran entitled to receive compensation for TB as of August 19, 1968, is rated under the general rating formula for inactive pulmonary TB (Diagnostic Codes 6701-6724). The general rating formula provides a 100 percent disability rating for two years after the date of inactivity, following active pulmonary TB. Thereafter, for four years, or in any event to six years after the date of inactivity, a 50 percent disability rating is assigned. Thereafter, for five years, or to 11 years after the date of inactivity, a 30 percent disability rating is assigned. Following far advanced lesions diagnosed at any time while the disease process was active, a minimum 30 percent rating is assigned. Following moderately-advanced lesions, but provided there is continued disability, emphysema, dyspnea on exertion, impairment of health, or other similar symptomatology, a 20 percent disability rating is assigned; otherwise, only a zero percent (noncompensable) rating is assigned. The notes following the general rating formula for inactive pulmonary TB specify that the graduated 50 percent and 30 percent ratings, as well as the permanent 30 percent and 20 percent ratings, are not to be combined with ratings for other respiratory disabilities. See 38 C.F.R. §§ 4.96(b), 4.97 (2015). Public Law 90-493 repealed section 356 of Title 38, United States Code that had provided graduated ratings for inactive TB (such as Diagnostic Code 6723). The repealed section, however, still applies to the case of any Veteran who, on August 19, 1968, was receiving or entitled to receive compensation for TB. See 38 C.F.R. § 4.96(b) (2015). Where the repealed provision remains applicable, it should be mentioned in the discussion portion of all ratings in which these provisions are applied. Id. Historically, the Veteran was initially rated as 100-percent disabled owing to this pulmonary TB, effective October 24, 1957. The RO reduced the disability rating to 50 percent effective July 31, 1960 and to 30 percent effective July 31, 1964. Finally, the disability rating was reduced even further, to 0 percent or noncompensable, as of July 31, 1969. The Veteran filed an increased-rating claim for the pulmonary TB and a service-connection claim for the consequent COPD in February 2008. A December 2009 rating decision granted entitlement to service connection for the COPD since shown to be associated with his pulmonary TB and assigned a 100 percent disability rating under Diagnostic Code 6604, effective February 14, 2008. The 100 percent rating is the maximum rating possible under all potentially applicable rating criteria. He cannot be awarded more than 100 percent under the schedular criteria at any given time. VA examinations in November 2009 and September 2012 show that the Veteran's pulmonary TB is inactive (not active). He is not entitled to a separate disability rating under Diagnostic Code 6723 for his inactive pulmonary TB as VA regulation does not allow a compensable rating for inactive pulmonary TB to be combined with ratings for other respiratory disabilities. See 38 C.F.R. § 4.97, Note 2 following the General Rating Formula for Inactive Pulmonary TB. The Board has considered whether the Veteran is entitled to a higher disability rating for inactive pulmonary TB under other alterative diagnostic codes. However, the preponderance of the evidence shows that this disability does not involve any other factor(s) that would warrant evaluating it under any other provision(s) of VA's Rating Schedule. With respect to whether a "staged" rating is appropriate, the evidence of record shows the Veteran's inactive pulmonary TB has not fluctuated materially during the course of this appeal. This being so, a staged rating is unwarranted. For these reasons and bases, the preponderance of the evidence is against this claim. Therefore, this claim must be denied. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO or Board may refer a claim to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected inactive pulmonary TB is inadequate. A comparison between the level of severity and symptomatology of the Veteran's inactive pulmonary TB with the established criteria found in the Rating Schedule for disabilities of the respiratory system shows that the rating criteria reasonably describe his disability level and symptomatology. The evidence shows that his inactive pulmonary TB has not had a recurrence or caused marked interference with his employment, necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards for rating this type of disability. Thus, absent factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER An effective date earlier than February 14, 2008, for the grant of service connection for COPD associated with pulmonary TB is denied. A compensable disability rating for the service-connected pulmonary TB also is denied. REMAND With respect to his initial increased-rating claim for hiatal hernia with reflux esophagitis and sphincter narrowing/scarring, gastritis, and ulcer disease, the Veteran contends that he is entitled to a separate disability rating for his esophageal sphincter stricture under Diagnostic Code 7203. The VA examiner in September 2012 did not indicate the Veteran now has or ever had been diagnosed with esophageal stricture. He also determined the Veteran did not have an esophageal stricture and did not evaluate that disability. He only cited to an April 2003 gastointestinal (GI) radiographic study in the VA examination report. But an October 2009 VA treatment record shows that an esophagogastroduodenoscopy with biopsies and dilation revealed a muscular ring at the gastroesophageal junction that was difficult to visualize due to very spastic and dynamic gastroesophageal junction. A January 2002 private treatment record notes that the Veteran has history of hiatal hernia with Schatzki's ring. A February 1999 private treatment record reveals that the results of panendoscopy with biopsy revealed a wide bore Schatzki's ring. Thus, the Board finds that the September 2012 VA examination is inadequate and the Veteran should be provided another VA examination to fully evaluate the severity of all of his service-connected esophageal disorders. Regarding the initial increased-rating claim for rhinitis, the Veteran's representative asserted in the February 2016 Post-Remand Brief that the Veteran's rhinitis from September 20, 2012 is more severe than represented by VA. Where the Veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olson v. Principi, 3 Vet. App. 480, 482 (1992). Furthermore, according to VAOPGCPREC 11-95 (1995), a new examination is appropriate when there is an assertion of an increase in severity since the last examination. As the Veteran's most recent VA examination for rhinitis was in September 2012 and the Veteran has asserted an increase in severity, the Board concludes that he should be provided another VA examination reassessing the severity of his service-connected rhinitis. With respect to his increased-rating claim for the vestibular disorder, the Veteran contends that it should be evaluated under Diagnostic Code 6204 or alternatively referred for extra-schedular consideration. Specifically, he notes that his VA treatment records show that he has Meniere's disease. He is service connected for hearing loss, tinnitus, and a vestibular disorder. Although he is not service-connected for Meniere's disease, per se, he asserts that his symptoms of hearing loss, tinnitus, and a vestibular disorder are due to the aggressive treatment of his TB in service - to include Streptomycin - and are actually symptoms of his Meniere's disease. Meniere's syndrome is evaluated under Diagnostic Code 6205 and the rating criteria are based on the severity of hearing impairment and vertigo. Thus, the Board finds that he should be provided a VA examination to determine whether his service-connected hearing loss, tinnitus, and vestibular disorder are actually symptoms of Meniere's disease. If the AMC/RO determines that his service-connected disabilities are not symptoms of Meniere's disease, then consider whether his service-connected vestibular disorder should be referred for extra-schedular consideration based on his severe symptoms of daily intermittent vertigo and dizziness. Regarding the derivative TDIU claim, the Board finds that it is inextricably intertwined with the increased-rating claims for hiatal hernia and vestibular dysfunction. Thus, adjudication of the TDIU claim must be deferred as the Board is remanding the increased-rating claims for hiatal hernia and vestibular dysfunction. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that issues are" inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, these claims are REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran to ask him to inform VA if he has any outstanding VA or private treatment with respect to the claims left on appeal and, if he does, to elicit from him the appropriate consent to obtain any relevant private treatment records. If VA secures the proper consent from him, then attempt to obtain all identified treatment records relating to his remaining claims on appeal and associate them with the virtual (paperless) file. 2. After completing the foregoing and associating any outstanding evidence with the claims file, schedule the Veteran for a VA examination with an appropriate specialist to determine the severity of all of his service-connected digestive/esophageal disorders (hiatal hernia, reflux esophagitis, esophageal sphincter narrowing/scarring, gastritis, and ulcer disease). The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms and clinical findings in detail. The examiner should comment on the Veteran's level of occupational impairment caused by his service-connected digestive/esophageal disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. The examiner should provide an explanation for all conclusions reached. 3. After completing directive (1) and any outstanding evidence has been associated with the claims file, schedule the Veteran for a VA examination with an appropriate specialist to determine the current severity of his service-connected rhinitis. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms and clinical findings in detail. The examiner should comment on the Veteran's level of occupational impairment caused by his rhinitis, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. The examiner should provide an explanation for all conclusions reached. 4. After completing directive (1) and associating any outstanding evidence with the claims file, schedule the Veteran for a VA examination by an otolaryngologist (ear, nose, and throat specialist) or other appropriate specialist with respect to the Veteran's increased rating claim for a vestibular disorder. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms and clinical findings in detail. The examiner should comment on the Veteran's level of occupational impairment caused by his vestibular disorder, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. After review of the pertinent evidence of record and physically evaluating the Veteran, the examiner is asked to determine if the Veteran's service-connected hearing impairment (hearing loss and tinnitus) and vestibular disorder are actually symptoms of Meniere's disease. The examiner must provide an explanation in support of all his or her opinions. As part of his or her explanation, the examiner is asked to address the VA treatment records that indicate that the Veteran is diagnosed with Meniere's disease. 5. If, and only if, the AMC/RO determines that the Veteran's service-connected vestibular disorder is not a symptom of Meniere's disease, then consider whether the Veteran's service-connected vestibular disorder should be referred for extra-schedular consideration based on his symptoms of daily intermittent vertigo and dizziness that lasts one to four hours. 6. Upon completion of the foregoing, readjudicate the Veteran's claims that remain based on this and all other additional evidence. If these claims continue to be denied or are not granted to his satisfaction, send him and his representative another SSOC and give them time to respond to it before returning the file to the Board for further appellate consideration of all remaining claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs