Citation Nr: 1801387 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-03 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an effective date prior to March 5, 2012, for the award of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had honorable active service in the United States Army from August 1968 to March 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction of the claims file is currently with the RO in Detroit, Michigan. The July 2008 rating decision, in pertinent part, denied entitlement to service connection for posttraumatic stress disorder (PTSD), for bilateral hearing loss, and for status post excision of malignant melanoma on the left side of the neck. The rating decision also increased the rating for service-connected low back disability from noncompensable to 10 percent, effective January 24, 2008, continued a noncompensable rating for service-connected malaria, and granted service connection for tinnitus. In a Notice of Disagreement received in August 2008, the Veteran appealed the denial of service connection for posttraumatic stress disorder (PTSD), for bilateral hearing loss, and for status post excision of malignant melanoma on the left side of the neck, and disagreed with the staged ratings for service-connected low back disability. No appeal was taken as to the grant of service connection for tinnitus nor the noncompensable rating for service-connected malaria. A statement of the case (SOC) issued in January 2010 addressed the issues of service connection for bilateral hearing loss, and for status post excision of malignant melanoma on the left side of the neck, and the staged ratings for service-connected low back disability. A substantive appeal as to those issues was timely received later in January 2010. In a January 2010 rating decision, the RO granted service connection for PTSD and assigned a 30 percent initial evaluation, effective June 28, 2007, the date of receipt of the claim. The Veteran appealed the 30 percent initial rating assigned in a Notice of Disagreement received in March 2010. A SOC issued in July 2010, and a substantive appeal was received later in July 2010. In a July 2016 Board decision, the Board decided entitlement to increased staged ratings for service-connected low back disability, and granted a 70 percent initial rating for the service-connected PTSD effective June 28, 2007. As such, those matters are no longer for appellate consideration. The July 2016 Board decision remanded the issues of entitlement to service connection for bilateral hearing loss and for status post excision of malignant melanoma on the left side of the neck. The July 2016 Board decision also remanded the issue of entitlement to a TDIU prior to March 5, 2012, noting that the issue was raised by the record and was part and parcel of an increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that her service-connected disability prevents her from working). In a June 2017 rating decision, the RO granted service connection for status post excision of malignant melanoma on the left side of the neck and left earlobe and assigned a 30 percent initial evaluation, effective June 28, 2007, the date of claim. The RO also granted service connection for tender scars, residuals of excision of malignant melanoma of the left side of the neck and left earlobe, and assigned a 10 percent initial evaluation, effective June 28, 2007. The Veteran has not disagreed with the assigned initial evaluations or effective dates. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (finding that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, the matters have been resolved and are no longer in appellate status. The matters of entitlement to service connection for bilateral hearing loss, and entitlement to a TDIU prior to March 5, 2012, have been returned to the Board for further appellate consideration. The record reflects that the Veteran requested and was subsequently scheduled for a Travel Board hearing in March 2012. The Veteran did not appear for the hearing or attempt to reschedule, and he has not made another request for a hearing. Therefore, the request for a hearing before the Board is considered to have been withdrawn. See 38 C.F.R. § 20.704(e) (2017). The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The issue of entitlement to service connection for bilateral hearing loss is REMANDED to the Agency of Original Jurisdiction (AOJ). Although such issue would normally be inextricably intertwined with the adjudication of an issue of entitlement to a TDIU, inasmuch as the TDIU issue on appeal has been granted herein effective from October 31, 2008, and the record establishes that the Veteran was employed prior to October 31, 2008, there is no prejudice to the Veteran by the adjudication of the TDIU issue on the merits. FINDINGS OF FACT 1. The most recent claim (formal or informal) received from the Veteran seeking entitlement to service connection for PTSD is dated June 28, 2007. 2. Entitlement to service connection for PTSD, amongst other issues, was denied by a July 2008 rating decision. The Veteran perfected an appeal of that decision. 3. A July 2016 Board decision granted a 70 percent rating for the Veteran's service-connected PTSD, effective June 28, 2007, the date of claim; the Board also found the issue of TDIU was raised by the record, as it was part and parcel of the Veteran's increased rating claim. 4. As of October 31, 2008, when the Veteran became unable to obtain or maintain a substantially gainful occupation as a result of service-connected disabilities, the evidence of record demonstrates that the Veteran had a combined disability evaluation of 80 percent, with PTSD rated as 70 percent disabling, status post excision of malignant melanoma left side of neck and earlobe rated as 30 percent disabling, tinnitus rated as 10 percent disabling, tender scars associated with the malignant melanoma rated as 10 percent disabling, and malaria rated as noncompensable. CONCLUSION OF LAW The criteria for establishing entitlement to an effective date of October 31, 2008, for the grant of entitlement to TDIU benefits, have been met. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate his claim of entitlement to an effective date prior to March 5, 2012, for the award of a TDIU due to service-connected disabilities. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2017). II. Legal Criteria Earlier Effective Date for the Award of TDIU Benefits The statutory guidelines for the determination of an effective date for an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a 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 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101 (a). A "claim" is 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155 (a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 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. An application is defined as 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. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). The provisions of 38 C.F.R. § 3.155 (c) provide that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. III. Factual Background and Analysis For historical purposes, the Veteran initiated a formal claim for TDIU benefits on December 21, 2011, due to service-connected disabilities. Thereafter, TDIU benefits were granted in an October 2012 rating decision, effective as of March 5, 2012, the date entitlement arose. Specifically, the AOJ noted a 90 percent combined rating from March 5, 2012 due to the bilateral factor of 6.4 percent for the Veteran's service-connected left lower extremity radiculopathy, rated 40 percent disabling from March 5, 2012 pursuant to Diagnostic Code 8520, and right lower extremity radiculopathy, rated 40 percent disabling from March 5, 2012 pursuant to Diagnostic Code 8520. In a July 20, 2016 Board decision, the Board noted that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Board found that the issue of TDIU had been raised by the record, and noted that it was granting a 70 percent rating for the Veteran's PTSD beginning June 28, 2007, the date of a formal claim for service connection. The Board found that a remand was necessary to address the issue of entitlement to a TDIU prior to March 5, 2012, specifically for consideration and issuance of a Supplemental Statement of the Case (SSOC), prior to Board review so not to prejudice the Veteran. The record reflects that the Veteran stopped working on October 31, 2008 due to his service-connected disabilities. Specifically, a May 14, 2014 Social Security Administration Record (SSA) indicates the Veteran became disabled due to his service-connected back and mental health disabilities on October 31, 2008. In addition, an October 2008 statement from one of the Veteran's co-workers notes that when he was working, the Veteran exhibited inappropriate and aggressive behavior when responding to co-workers and supervisors. His co-worker further opined that the Veteran was only able to maintain employment as long as he did because his employer exercised patience and understanding. Further, a December 2008 SSA record, as well as April 2010 hearing testimony before the RO note the Veteran's report that he was no longer able to work because he could not get along with his supervisor and feared being fired due to his service-connected PTSD symptoms. In light of the above evidence, the Board finds that the appropriate effective date for the award of TDIU benefits is October 31, 2008 - the date entitlement arose (the date the Veteran stopped working and was deemed disabled by the SSA). While the Veteran did not meet the criteria for an award of TDIU benefits at the time of the July 28, 2008 rating decision, or at the time entitlement arose, the retroactive award granted in the July 20, 2016 Board decision changed this. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.340, 3.341, 4.16 (2017). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. § 3.341, 4.16, 4.19 (2017). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, it shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). The record reflects that as of June 28, 2007, the Veteran was in receipt of service connection for PTSD (rated as 70 percent disabling), status post excision of malignant melanoma left side of neck and earlobe (rated as 30 percent disabling), tinnitus (rated as 10 percent disabling), tender scars associated with the malignant melanoma (rated as 10 percent disabling), and malaria (rated noncompensable) for a combined evaluation of 80 percent. As such, the Veteran has met the threshold criteria for an award of TDIU benefits as of June 28, 2007. However, as detailed above, it was not until October 31, 2008 that entitlement arose. As such, October 31, 2008 is the earliest date for which TDIU benefits can be granted, when the Veteran was unable to secure and maintain substantially gainful employment due to his service-connected disabilities, and he met the minimum rating requirements of having two or more disabilities with one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to an effective date prior to October 31, 2008, for the award of TDIU benefits. Again, the proper effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. In the present case, although VA received a claim on June 28, 2007, the evidence does not demonstrate that the Veteran's service-connected PTSD rendered him unemployable until October 31, 2008. Resolving all reasonable doubt in favor of the Veteran, the Board finds that an effective date of October 31, 2008, for the award of TDIU benefits is warranted. See 38 U.S.C. § 5107 (b). However, the preponderance of the evidence of record demonstrates that an effective date prior to October 31, 2008, for the award of TDIU benefits is not warranted. ORDER An effective date of October 31, 2008, for the award of TDIU benefits is granted. REMAND The Veteran contends that his current bilateral hearing loss disability is due to active service, coincident to his duties as an artillery cannoneer in the United States Army, while serving in the Republic of Vietnam during the Vietnam Era. In this regard, service connection has been established for tinnitus due to noise exposure in service, and the most recent January 2017 VA examiner conceded the Veteran's noise exposure during service due to his military occupational specialty. Moreover, the record demonstrates the Veteran's consistent reports of hearing loss since active service that has progressively worsened. In March 2008 and January 2017, the Veteran underwent VA audiometric examinations. The examiners conceded noise exposure during service and diagnosed bilateral hearing loss. The examiners, however, found that the Veteran's current bilateral hearing loss disability was not related to active service. In providing their opinions, they noted the Veteran's normal hearing bilaterally upon separation from service and within two months following service. The Board finds these opinions inadequate to adjudicate the claim. Specifically, the opinions did not address the theory of delayed or latent onset of hearing loss or the Veteran's noise exposure during active service. In addition, the examiners did not consider the Veteran's contentions of hearing loss since active service that has progressively worsened. Further, the examiners did not consider the July 2010 statement from fellow serviceman K.K., who witnessed the Veteran assisting in the firing of weapons in Vietnam without the use of hearing protection, as hearing protection was not available. Moreover, the examiners failed to consider the March 2010 and June 2010 private opinions that indicate that the Veteran's current bilateral hearing loss "may be" and "could be" related to service. Therefore, the Board must remand this issue for an adequate VA medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, development to obtain any outstanding medical records pertinent to the Veteran's claim should be completed. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim for service connection for bilateral hearing loss. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following review of the record, the physician should state a medical opinion with respect to hearing loss present during or proximate to the period of the claim, as to: * Whether it is at least as likely as not (i.e., at least 50 percent probable) that bilateral hearing loss originated during service or is otherwise etiologically related to the Veteran's service, to include his conceded exposure to noise during service, or developed within one year of his March 1970 separation from service? The examiner should review the entire record, including service treatment records, and post-service treatment records. In this analysis, the examiner must discuss the theory of delayed or latent onset of hearing loss, as well as the Veteran's lay statements and testimony before the RO regarding his noise exposure while serving in Vietnam during service. The examiner must also consider the July 2010 statement from K.K., who witnessed the Veteran assisting in the firing of weapons in Vietnam without the use of hearing protection, as hearing protection was not available. Finally, the examiner must consider the March 2010 and June 2010 private opinions that indicate that the Veteran's current bilateral hearing loss "may be" and "could be" related to service. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The AOJ should also undertake any other development it determines to be warranted. 4. Then, the AOJ should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs