Citation Nr: 1757586 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-22 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to an effective date prior to February 25, 2011, for the award of service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to an effective date prior to February 25, 2011, for the award of service connection for bilateral hearing loss. 4. Entitlement to an effective date prior to February 25, 2011, for the award of service connection for tinnitus. 5. Entitlement to an effective date prior to February 25, 2011, for the award of service connection for a residual scar. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from March 1966 to March 1969, including service in Vietnam. His awards and decorations include the Purple Heart, National Defense Service Medal, Vietnam Campaign Medal with Device, Vietnam Service Medal with 3 Stars, and Vietnam Cross of Gallantry with Silver Star. He died in July 2012. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from March and April 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2017, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. This appeal was processed using the Veterans Benefits Management System and the Virtual VA electronic claims file. FINDINGS OF FACT 1. The Veteran filed a formal claim for entitlement to service connection for PTSD, bilateral hearing loss, tinnitus, and a residual scar, on February 25, 2011. The record does not contain evidence of the Veteran having filed any of these claims prior to February 25, 2011. 2. The Veteran's death certificate reflects that he died in July. 3. At the time of death, the Veteran was service-connected for atherosclerotic heart disease, PTSD, bilateral hearing loss, tinnitus, and a residual scar. 4. The Veteran's cause of death was causally related to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 25, 2011 for the award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2017). 2. The criteria for an effective date prior to February 25, 2011 for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2017). 3. The criteria for an effective date prior to February 25, 2011 for the award of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2017). 4. The criteria for an effective date prior to February 25, 2011 for the award of service connection for a residual scar have not been met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2017). 5. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5107 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date Generally, the effective date of an evaluation and award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The Board notes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. Because VA received the Veteran's claims prior to March 24, 2015, the former regulations apply as cited below. When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file that could be interpreted to be a claim for benefits. A claim is defined as a formal or informal written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. Any communication or action from a claimant indicating intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). The Veteran asserted that he was entitled to an effective date prior to February 25, 2011, for the grant of service connection for PTSD, bilateral hearing loss, tinnitus, and a residual scar. The Veteran contended that he was entitled to an effective date of August 31, 2010, the date he asserted that he applied for benefits and submitted a claim. See May 2012 VA Form 21-4138, Statement in Support of Claim. The Board has thoroughly reviewed the evidence of record prior to February 25, 2011, to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for service connection for February 25, 2011, during that time. The record shows that the Veteran filed a formal claim for entitlement to service connection for PTSD, bilateral hearing loss, tinnitus, and a residual scar, on February 25, 2011. See February 2011 VA Form 21-526, Veterans Application for Compensation or Pension. The record does not contain evidence of the Veteran having filed any claim prior to February 25, 2011. Although the Board is sympathetic to the appellant's contention that the Veteran should be awarded service connection effective as of August 31, 2010, the date that he contended he submitted a claim, the Board is bound by the applicable statutes and regulations. 38 U.S.C.A. § 7104(c)(West 2014); 38 C.F.R. § 20.101(a)(2017). As noted above, an effective date is assigned based on the date of claim or the date entitlement arose, whichever is later. Thus, the proper effective date is February 25, 2011, the date of claim. Accordingly, an earlier effective date is not warranted for the award of service connection for PTSD, bilateral hearing loss, tinnitus, and a residual scar. Cause of Death DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially and materially to the veteran's death. 38 C.F.R. § 3.312. Service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected PTSD substantially and materially contributed to his death by gunshot wound to the head. Although a March 2013 VA examiner found a pattern that was inconsistent with PTSD contributing to the Veteran's suicide, the Board finds the opinion is of limited probative value, as the examiner did not consider the events immediately preceding the Veteran's death. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). Specifically, the Veteran called his VA clinical social worker (PTSD counselor) the day he committed suicide. The PTSD counselor noted that the Veteran was upset that the PTSD counselor could not understand him. The phone became disconnected. Soon after, the Veteran called 911 to inform them to "come and be prepared to clean up the mess." The Veteran shot himself in the head. See July 2012 Provider/Clinician Telephone Contact Notes; June 2017 Transcript of Hearing at 16-17. The Board concludes, on review of the record and with the benefit of the doubt resolved in the appellant's favor, that a grant of service connection for the cause of the Veteran's death is warranted. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). The undersigned expresses his utmost sympathies to the appellant for the loss of the Veteran. Furthermore, the undersigned expresses his sincerest appreciation for the Veteran's service and sacrifices in ensuring the safety and protection of a grateful nation. ORDER An effective date prior to February 25, 2011 for the award of service connection for PTSD is denied. An effective date prior to February 25, 2011 for the award of service connection for bilateral hearing loss is denied. An effective date prior to February 25, 2011 for the award of service connection for tinnitus is denied. An effective date prior to February 25, 2011 for the award of service connection for a residual scar is denied. Service connection for the cause of the Veteran's death is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs