Citation Nr: 1804834 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 17-01 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date earlier than September 30, 2010, for a grant of service connection for tinnitus. 2. Entitlement to service connection for erectile dysfunction. 3. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). 4. Entitlement to a compensable initial rating for bilateral hearing loss prior to May 17, 2017, and in excess of 10 percent from that date. 5. Entitlement to service connection for a pulmonary disorder, to include as a result of claimed in-service exposure to asbestos. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to August 1973. This case comes before the Board of Veterans' Appeals (Board) based on an appeal perfected with respect to the effective date assigned for the grant of service connection for tinnitus by a March 2012 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C. § 7107(e) (2012). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. A transcript of this hearing is of record. The decision with respect to the claim for an earlier effective date for service connection for tinnitus is set forth below. The remaining issues listed on the Title Page addressed in the REMAND portion of the decision below require additional processing pursuant to the holding in Manlincon v. West, 12 Vet. App. 238 (1999) and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Based on an August 2011 VA examination that resulted in the opinion that it was at least as likely as not that the Veteran's tinnitus was related to in-service noise exposure, a March 2012 rating decision granted service connection for tinnitus effective from the date of receipt of the claim, September 30, 2010. 2. There is no document of record which may be construed as a formal or an informal claim for service connection for tinnitus dated or received prior to September 30, 2010. CONCLUSION OF LAW The legal requirements for an effective date prior to September 30, 2010, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Federal Circuit held that 38 U.S.C. § 5103(a) does not impose its notice obligations upon receipt of a notice of disagreement with the rating and effective date assigned by an AOJ for an award of benefits. As such, once the March 2012 rating decision was made awarding service connection, an effective date, and a rating for tinnitus, 5103(a) notice had served its purpose, as the claim had already been substantiated. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Sutton v. Nicholson, 20 Vet. App. 419 (2006). With respect to the duty to assist, as the resolution of a claim for an earlier effective date is necessarily based on the facts as they existed at the time the effective date in question was assigned, no additional development of such claims to fulfill this duty is necessary. See Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001). The assignment of effective dates of VA awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for compensation (i.e., service connection) "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. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection/compensation will be, "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. If a claim for service connection for a disability is filed within one year of separation from active service, the effective date of an award of compensation for such disability shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). In the instant case, the Veteran filed a claim for service connection for tinnitus, as well as bilateral hearing loss, that was received on September 30, 2010. Based on an August 2011 VA examination that resulted in the opinion that it was at least as likely as not that the Veteran's tinnitus was related to in-service noise exposure, a March 2012 rating decision granted service connection for tinnitus effective from September 30,2010, the date of receipt of claim. As set forth above, the effective date of an award of service connection is the later of the date of receipt of claim or the date entitlement arose. 38 C.F.R. § 3.400. Thus, whatever communication is considered to be the claim for service connection for tinnitus, as is there is no evidence until the August 2011 VA examination linking tinnitus to service, an earlier effective date for the grant of service connection cannot be assigned prior to prior on September 30, 2010, as it is not factually ascertainable prior to that date that entitlement to service connection for this disability arose. Notwithstanding the above, the Veteran, to include in sworn testimony to the undersigned, has asserted that the effective date for the grand of service connection for tinnitus should be from the receipt of an October 1994 claim for service connection for bilateral hearing loss, as his tinnitus was "one and the same" as hearing loss. In point of fact, the Veteran did not reference tinnitus in his October 1994 claim, or in any communication prior to his September 2010 claim for service connection for this disability. The October 1994 claim for service connection for hearing loss as denied by an August 1995 rating decision to which the Veteran was notified, and of his appellate rights, shortly thereafter. As the Veteran did not perfect an appeal with respect to this decision, this decision is final as to the evidence than of record, and the claim may only be reopened based on the receipt of new and material evidence. 38 U.S.C. §§ 7105(c), 5108 (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017). Thus, even if the October 1994 claim were viewed as encompassing tinnitus, an effective date earlier than September 30, 2010, would be inconsistent with the rules and regulations concerning effective dates for awards of compensation because under 38 U.S.C. 5110(a); 38 C.F.R.§ 3.400(r), the effective date based on new and material evidence (other than service department records which is not at issue in the instant case) received after the final disallowance of a claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. Such would be the the case because the grant of service connection for bilateral hearing loss, and entitlement to such arose, based on new and material evidence in the form of the August 2011 VA examination, which included an opinion that the Veteran's hearing loss was also at least as likely as not related to in service noise exposure. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Id. at 57,686. Under the former regulations, any communication indicating 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) (2014). 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). The Board has carefully reviewed the record to determine whether there is any other communication or record prior to September 30, 2010, which may be interpreted as a claim for benefits under the former regulations. See Servello v. Derwinski, 3 Vet. App. 196 (1992) (the Board must look at any communication that can be interpreted as a claim, formal or informal, for VA benefits). An informal claim was not shown to exist during this time period because no communication was ever filed prior to September 30, 2010, indicating an intent to apply for service connection for tinnitus, or to reapply for service connection for bilateral hearing loss. In this regard, the Veteran testified to the undersigned that he did not attempt to refile a claim for service connection for bilateral hearing gloss between his initial October 1994 claim and the claim filed in September 2010. May 16, 2017, Hearing Transcript, Page 5. Parenthetically, the undersigned notes that even if the October 1994 claim for service connection for bilateral hearing loss were construed as encompassing a "pending" claim for service connection for tinnitus that was not adjudicated until the March 2012 rating decision, as the effective date of an award of service connection is the later of the date of receipt of claim or the date entitlement arose, and entitlement to service connection for tinnitus was not demonstrated until the August 2011 VA examination that included the opinion linking tinnitus to service, an effective date cannot be assigned effective from the October 1994 claim. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. An informal claim must identify the benefit sought. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (noting that VA "is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed," and citing Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995), for the proposition that VA is not required to do a "prognostication" or "conjure up" issues that were not raised by the appellant, but to review issues reasonably raised by the substantive appeal). The Board adds that these cases make it evident that medical records generally cannot be construed as constituting an informal claim for service connection. They may be an informal claim for an increased disability rating or to reopen a compensation claim originally denied by reason of not being compensable in degree, but that is not the situation here. See 38 C.F.R. § 3.157 (2017). In short, the evidence demonstrates that prior to September 30, 2010, the Veteran did not submit any claim, either formal or informal, for service connection for tinnitus. As such, entitlement to an effective date earlier than September 30, 2010, for the grant of service connection for tinnitus must be denied. ORDER Entitlement to an effective date earlier than September 30, 2010, for a grant of service connection for tinnitus is denied. REMAND The March 2012 rating decision on appeal, in addition to establishing service connection for tinnitus and bilateral hearing loss as set forth above, denied a claim for service connection for erectile dysfunction and reopened and denied a claim for service connection for PTSD also claimed as anxiety. Communications thereafter, to include such received in October 2012, may reasonably construed as a timely notice of disagreement with the rating assigned for bilateral hearing loss by the March 2012 rating decision and the denials therein of the claims for service connection for erectile dysfunction and an acquired psychiatric disorder to include PTSD. While a June 2014 rating decision also addressed these matters, proper consideration of such requires statement of the case (SOC). Manlincon, supra. The undersigned notes that although a July 2017 rating decision increased the rating for bilateral hearing loss from 0 to 10 percent effective from May 17, 2017, the October 2012 notice disagreement remains operative with respect to the matter of whether a compensable rating may be assigned for bilateral hearing gloss prior to May 17, 2017, and in excess of 10 percent form that date. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (stating that in a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum available benefit allowed by law or regulation). As such, this matter has been listed accordingly on the Title Page. Finally, as the June 2014 rating decision also adjudicated the additional claim for of entitlement to service connection for pulmonary asbestosis, and the Veteran submitted argument shortly thereafter in that month that may be reasonably be construed to represent a notice of disagreement with respect to this claim, the AOJ will be directed to complete an SOC that addresses this matter as well. Manlincon, supra. Accordingly, the case is REMANDED for the following action: Furnish to the Veteran and his representative an SOC with respect to the claim for service connection for erectile dysfunction; the petition to reopen a claim for service connection for an acquired psychiatric disorder, to include PTSD; entitlement to a compensable initial rating for bilateral hearing loss prior to May 17, 2017, and in excess of 10 percent from that date; and entitlement to service connection for a pulmonary disorder, to include as a result of claimed in-service exposure to asbestos. The Veteran and his representative are hereby reminded that to obtain appellate review of any of these matters, a timely appeal must be perfected; that is, within 60 days of the issuance of the SOC. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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 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. §§ 5109B, 7112 (2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs