Citation Nr: 1635581	
Decision Date: 09/12/16    Archive Date: 09/20/16

DOCKET NO.  15-22 812	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for anxiety.

2.  Entitlement to service connection for depression.

3.  Entitlement to service connection for lumbosacral spine degenerative disease.

4.  Entitlement to an evaluation separate from fibromyalgia for tremors.

5.  Entitlement to an evaluation separate from fibromyalgia for difficulty catching breath and atypical chest pain.

6.  Entitlement to an evaluation separate from fibromyalgia for fatigue.

7.  Entitlement to an evaluation separate from fibromyalgia for muscle and joint pain.

8.  Entitlement to an evaluation separate from fibromyalgia for excessive sweating.

9.  Entitlement to an evaluation separate from fibromyalgia for sensitivity and pain to the skin.

10.  Entitlement to an evaluation separate from fibromyalgia for headaches.

11.  Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD).

12.  Entitlement to an effective date earlier than August 27, 2013 for the grant of service connection for tinnitus.

13.  Entitlement to an effective date earlier than August 27, 2013 for the grant of service connection for PTSD.

14.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

E. Redman, Counsel


INTRODUCTION

The Veteran served on active duty from March 1989 to March 1993.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decision dated in October 2014 and February 2015 of the Department of Veterans Affairs (VA) Regional Office (RO).  The October 2014 rating decision granted service connection for PTSD and assigned a 30 percent rating effective August 27, 2013, and denied service connection for anxiety, depression, lumbosacral spine degenerative disease, tremors, breathing problems, fatigue, muscle and joint pain, excessive sweating, and skin sensitivity.  The issues of entitlement to service connection for tinnitus, chest pain, and headaches were deferred.  

The February 2015 rating decision granted service connection for tinnitus and assigned a 10 percent rating effective August 27, 2013, denied service connection for headaches, and denied reopening the claim of entitlement to service connection for chest pain.

In a June 2015 rating decision, the RO granted service connection for fibromyalgia (claimed as sleep disturbances, fatigue, muscle and joint pain, headaches, skin sensitivity, body aches, and excessive sweating), granted an increased rating for PTSD of 50 percent, effective August 27, 2013, and deferred entitlement to TDIU.  As this is not the highest possible rating for PTSD, the appeal continues.  See AB v. Brown, 6 Vet. App. 35 (1993).

The issue of entitlement to a TDIU has been raised by the Veteran's attorney.  See Brief in Response to 90 Day Letter dated January 5, 2016.  The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the evaluation assigned for PTSD is on appeal and the Veteran's attorney has argued that TDIU is warranted, in part, due to the service-connected PTSD.  As such, the issue of entitlement to a TDIU is properly before the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for anxiety, depression, and lumbosacral spine degenerative disease; entitlement to evaluations separate from fibromyalgia for tremors, difficulty catching breath and atypical chest pain, fatigue, muscle and joint pain, excessive sweating, sensitivity and pain to the skin, and headaches; entitlement to an initial evaluation in excess of 50 percent for PTSD and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's claims of entitlement to service connection for PTSD and tinnitus were received by VA on August 27, 2013. 


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than August 27, 2013, for the award of service connection for PTSD have not been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015).

2.  The criteria for an effective date earlier than August 27, 2013 for the award of service connection for tinnitus have not been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

      Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

This appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection for PTSD and tinnitus.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  No additional discussion of the duty to notify is therefore required.

With regard to the duty to assist, the Board notes that the Veteran's service treatment records and post-service medical records have been obtained.  There is no indication that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless.

      Legal Analysis

The Veteran seeks an effective date earlier than August 27, 2013, for the award of service connection for both PTSD and tinnitus. 

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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 2014).  Generally, the effective date of an evaluation and award of compensation based on an original claim, is the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110 (a) (West 2014); 38 C.F.R. § 3.400 (2015).  But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application.  38 U.S.C.A. § 5110(a).

The record on appeal shows that on August 27, 2013, the RO received the Veteran's claims of service connection for tinnitus and PTSD.  The record on appeal contains no indication that the Veteran filed an earlier claim and he has not contended otherwise.

In an October 2014 rating decision, the RO granted service connection for PTSD, effective August 27, 2013, the date of receipt of the Veteran's claim.  In a February 2015 rating decision the RO granted service connection for tinnitus, effective August 27, 2013, the date of receipt of the Veteran's claim.

The Veteran has appealed the effective date assigned by the RO.  Neither he nor his attorney, however, has submitted any evidence or argument in support of the appeal, other than to indicate that the Veteran seeks the maximum benefit.  Under the undisputed facts of this case, however, the Veteran is currently in receipt of the earliest effective date legally available and he has offered no evidence or argument in support of an earlier effective date. 

As noted, the applicable law provides that the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2015).

As set forth above, the RO has assigned an effective date of August 27, 2013, for the award of service connection for tinnitus and PTSD, corresponding to the date of receipt of the Veteran's claims.  The Veteran has pointed to no earlier claim, formal or informal, and a review of the record reveals no communication which could be construed as a claim of service connection for these disabilities prior to August 27, 2013.  See 38 C.F.R. §§ 3.151, 3.155 (2014).

Again, the law clearly provides that the effective date of an award of compensation based on an original claim shall not be earlier than the date of receipt of that claim. In this case, the Veteran's claim of service connection for tinnitus and PTSD was received by VA on August 27, 2013, the effective date currently assigned.  For the reasons discussed above, there is no legal basis for an effective date earlier than August 27, 2013, for the award of service connection for tinnitus and PTSD.  See 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015).


ORDER

Entitlement to an effective date earlier than August 27, 2013 for the grant of service connection for PTSD is denied.  

Entitlement to an effective date earlier than August 27, 2013 for the grant of service connection for tinnitus is denied.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Since the statement of the case was issued in June 2015 additional relevant VA treatment records were added to the record in May 2016, which were not considered.  Thus, the statement of the case was issued prior to the completion of all claim development action by the AOJ and therefore, the adjudication did not consider the additional VA treatment record evidence.  Under 38 C.F.R. § 20.1304(c), the Veteran may waive his right to have any pertinent evidence submitted by him or his representative reviewed by the Agency of Original Jurisdiction (AOJ) in the first instance.  However, the evidence is not evidence submitted by the Veteran or his representative.  Therefore, this VA treatment evidence must be considered by the AOJ in the first instance, and a remand is required in order to accomplish that.  38 C.F.R. §§ 19.37(b), 20.1304(c) (2015).

While on remand, the Veteran's should also be asked to submit additional information related to his claim for a TDIU.  

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).  Expedited handling is requested.)

1.  Request that the Veteran complete and submit a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability).  Additional development should be undertaken as a result of the information provided by the Veteran as necessary.

2.  Review the record, including all newly acquired evidence since the May 2015 Statement of the Case, including the VA treatment records dating through April 2016, which were added to the record in May 2016, and adjudicate the claims on appeal.  If any benefits sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his attorney, and an appropriate period of time in which to respond.  Then, return the appeal to the Board for appellate review.

The Veteran 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).





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These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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 2014).



______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs