Citation Nr: 18142125 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 15-38 580 DATE: October 15, 2018 ORDER New and material evidence having been submitted, the Veteran’s claim for entitlement to service connection for prostate cancer is reopened. Entitlement to service connection for high blood pressure (hypertension), as secondary to the Veteran’s posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for chronic kidney disease, as secondary to the Veteran’s now service-connected hypertension, is granted. Entitlement to a disability rating of greater than 70 percent for service-connected PTSD is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to an effective date earlier than August 7, 2012 for service-connected tinnitus is denied. REMANDED Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for stomach problems is remanded. FINDINGS OF FACT 1. Evidence received since the September 2010 rating decision denying service connection for prostate cancer is neither cumulative nor redundant of the evidence of record at the time of the September 2010 final decision, and raises a reasonable possibility of substantiating the claim as it relates to an unestablished fact. 2. Resolving reasonable doubt in the Veteran’s favor, his hypertension is proximately due to his service-connected PTSD. 3. Resolving reasonable doubt in the Veteran’s favor, his chronic kidney disease is proximately due to his now service-connected hypertension. 4. The Veteran’s service-connected PTSD has more nearly approximated total occupational and social impairment. 5. The claim of entitlement to TDIU is moot in light of the 100 percent schedular rating for PTSD. 6. The Veteran filed a claim for bilateral hearing loss, which was construed to include tinnitus, on August 7, 2012. Prior to this, the record contains no statement, communication, or other information from the Veteran that can reasonably be construed as reflecting an intent to file a claim of entitlement to service connection for tinnitus. CONCLUSIONS OF LAW 1. The criteria to permit reopening the Veteran’s claim for entitlement to service connection for prostate cancer based on new and material evidence have been met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2017). 3. The criteria for entitlement to service connection for chronic kidney disease have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2017). 4. The criteria for entitlement to a 100 disability rating for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.130, Diagnostic Code (DC) 9411 (2017). 5. The claim of entitlement to TDIU is dismissed. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 4.14, 4.16 (2017). 6. The criteria for entitlement to an effective date earlier than August 7, 2012 for service-connected tinnitus have not been met. 38 U.S.C. §§5107, 5110 (2012); 38 C.F.R. §§3.102, 3.157, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from July 1970 to July 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina (Agency of Original Jurisdiction (AOJ)). New and Material Evidence Generally, an unappealed AOJ denial is final under 38 U.S.C. § 7105(c). A claim for service connection may be reopened, however, if new and material evidence is received. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Per 38 C.F.R. § 3.156, “new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.” 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Whether new and material evidence has been received to permit reopening the Veteran’s claim for entitlement to service connection for prostate cancer The Veteran filed a claim for service connection for prostate cancer in February 2010. At that time, his service treatment records (STRs) were of record, as well as VA treatment records. A VA Memo dated August 2010 was also included, noting that the Joint Services Records Research Center (JSRRC) was unable to corroborate herbicide exposure. The Veteran provided nothing else in the form of medical records or even lay statements pertaining to his claim for prostate cancer. The AOJ denied the Veteran’s claim for service connection for prostate cancer in a September 2010 rating decision, indicating there was no evidence to suggest that the Veteran was exposed to herbicides. The Veteran was provided notice of this decision and his appellate rights by letter dated September 3, 2010. However, the Veteran did not submit a notice of disagreement or new and material evidence within one year of notice of the decision. This decision, therefore, is final. 38 U.S.C. §§7104(b); 7252 (2012). Evidence submitted since the September 2010 final AOJ rating decision includes VA treatment records and a VA examination suggesting he went ashore in Vietnam and even participated in military missions in both Thailand and Vietnam. The Veteran also provided a lay statement, contending that he was on an aircraft carrier and went ashore in Vietnam to pick up mail. He asserted that he would frequently stop to shake hands with other veterans who were stationed there, and that he also drank the water. The Board finds that the information provided and evidence associated with the Veteran’s claims file is sufficient to permit reopening his claim for entitlement to service connection for prostate cancer. Specifically, the new evidence of record suggests the Veteran may have gone ashore to Vietnam during the time period where exposure to herbicide agents is conceded. For reopening purposes, the Veteran’s report must be accepted as true which raises the possibility of substantiating his claim. Therefore, the Board finds that the evidence of record submitted since September 2010 pertaining to the Veteran’s prostate cancer is new and material, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. As such, the Board will permit reopening the claim. The issue of entitlement to service connection for prostate cancer for review on the merits is addressed in the REMAND below. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §1110; 38 C.F.R. §3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 2. Entitlement to service connection for hypertension The Veteran’s diagnosis of hypertension is well-documented throughout his claims folder in his medical records as early as February 2004. In March 2018, Dr. H.S. provided an opinion as to the relationship between the Veteran’s hypertension and his service-connected PTSD. After reviewing the Veteran’s file, he noted that the Veteran had a “long history of hypertension,” and referenced a treatment record from June 2010 that remarked “possible hypertensive nephrosclerosis.” The doctor rationalized that anxiety and depression cause overactive nerve activity, dysfunctional immune response, and activation of the hormone system that controls blood pressure; the relationship between the Veteran’s stress caused by his PTSD and his hypertension is thus “undisputed.” Dr. H.S. also cited that research has shown anxiety and depression are predictive of later incidence of hypertension. He ultimately opined that based on his interview with the Veteran, his review of the Veteran’s claims file, and the cited medical literature, it is more likely than not that the Veteran’s service-connected PTSD contributed to the development of his hypertension. The Board finds Dr. H.S. to be competent and credible to provide an opinion as to the etiology of the Veteran’s condition. 38 C.F.R. § 3.159. His opinion provided not only a scientific rational to support his position, but also cited to medical literature that supported his conclusion. Based on this opinion, the Board will therefore find that the Veteran is entitled to service connection for hypertension as secondary to his service-connected PTSD. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) 3. Entitlement to service connection for chronic kidney disease Similarly to the Veteran’s hypertension, the Veteran’s kidney condition is also referenced many times throughout his medical records. The first reference to chronic kidney disease is on the Veteran’s medical problem list at the top of documents dated 2010. Since that time, a diagnosis of chronic kidney disease has been consistently documented throughout the record. Additionally, one medical treatment record from February 2017 noted that the Veteran’s right kidney failed “many years ago.” In the same opinion letter that provided a nexus opinion for the Veteran’s PTSD and his hypertension, Dr. H.S. opined that it was at least as likely as not that the Veteran’s chronic kidney disease was “aided in [its] development…and permanently aggravate[d]” by his now service-connected hypertension. He referenced a VA treatment record from March 2013 that listed the Veteran’s diagnosis as chronic kidney disease hypertension atrophic right kidney, and noted that it said, “probably due to sub-optimally controlled hypertension in a single functioning kidney.” Dr. H.S. went on to state that medical literature indicates that hypertension is one of the major risk factors for the development and progression of chronic kidney disease. Ultimately, hypertension and renal disease comorbidly aggravate each other, which leads to a faster and more severe decline in the patient’s health, according to Dr. H.S. The Board finds Dr. H.S. to be competent and credible to provide an opinion as to the etiology of the Veteran’s condition. 38 C.F.R. § 3.159. His opinion provided not only a scientific rational to support his position, but also cited to medical literature that supported his conclusion. Furthermore, the March 2013 VA treatment record citing the cause of the Veteran’s chronic kidney disease as likely being related to his hypertension also provides a positive nexus opinion for the relationship between these two conditions. As such, the Board will grant service connection for chronic kidney disease as secondary to his now service-connected hypertension. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. §1155; 38 C.F.R. §4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. §4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). 4. Entitlement to a disability rating in excess of 70 percent for service-connected PTSD The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9434. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. PTSD evaluated at 70 percent disabling requires the following manifestations: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or the inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for mental conditions manifesting with total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. A review of the Veteran’s file reveals the following regarding his PTSD. As early as March 2004, the Veteran provided an opinion from his psychologist of almost two years, Dr. L.J., that indicated he was “unemployable as a result of his PTSD, [and] he is permanently and totally disabled.” A January 2005 VA treatment note penned by Dr. L.B. of the psychiatry unit remarked that the Veteran has “severe social and occupational dysfunction and is deemed totally and permanently disabled.” It was again noted in March 2010 that the Veteran continued to suffer from severe social and occupational dysfunction as a result of his PTSD. Lay statements provided by his wife in April 2012 noted that the Veteran does not sleep at night and instead, he is outside all night long, looming out the window. His wife reported that she needed to accompany the Veteran to appointments because he would forget the instructions given to him. He would frequently forget to take his medicine and eat, unless reminded by his wife. His wife reported that he cannot work for fear that he may become dangerous to others or himself as a result of his PTSD. His initial PTSD VA examination was conducted in May 2012. As noted above, the examiner reported that the Veteran had occupational and social impairment with reduced reliability and productivity. He endorsed experiencing trouble sleeping, as well as intrusive thoughts, avoidance behavior, hypervigilance, exaggerated startle, anger, irritability, feeling detached, and difficulty relating to others. The examiner noted the Veteran had difficulty in establishing and maintaining effective work and social relationships. One year later in June 2013, the Veteran underwent a review PTSD VA examination. The examiner again stated that the Veteran had occupational and social impairment with reduced reliability and productivity. She reported that the Veteran experienced many of the same symptoms previously noted as well as additional symptoms, including sleep disturbances, irritability or outbursts of anger, difficulty concentrating, hypervigilance, anxiety, suspiciousness, mild memory loss, and inability to establish and maintain effective relationships. Dr. H.H. provided similar findings in the review PTSD examination in August 2014. He was reported to be socially isolated and withdrawn. She noted he experienced the following symptoms: depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationship; obsessional rituals that interfere with routine activities; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran stated he can no longer enjoy the simplest of activities, and he has trouble remembering even basic information. Dr. H.H. proclaimed that the Veteran is socially isolated, withdrawn, and has assistance from his wife in performing his daily living tasks; notably, she must remind him to bathe. She also reported that the Veteran endorsed having auditory hallucinations and flashbacks. The Veteran’s symptoms at this time are most closely contemplated by a 100 percent disability rating. As provided by 38 C.F.R. 4.130, a 100 percent rating is warranted when there are such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives. The Veteran needs to be reminded to eat, bathe, and take medicine. He was noted to have obsessional rituals that interfere with routine activities; the Board would place walking the perimeter of his home at night in this category. His wife noted that due to the Veteran’s increased irritability and agitation, he cannot work for fear he would hurt himself or another person. Memory loss has also been noted throughout his medical records as a symptom of his PTSD. Based on these findings, the Board finds that the Veteran shall be entitled to a 100 percent disability rating for his PTSD. 5. Entitlement to TDIU For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §3.340. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with all disabilities combining to 70 percent or more. 38 C.F.R. § 4.16(a). As addressed above, the Board has assigned a 100 percent schedular rating for PTSD for the entire appeal period. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. As is potentially relevant here, VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)); See also 75 Fed. Reg. 11, 229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Here, there is no evidence or argument that the Veteran’s service-connected tinnitus by itself, which is rated as 10 percent disabling, renders the Veteran unemployable. As such, the Board deems this issue moot as there remains no further case or controversy on this issue. Sabonis v. Brown, 6 Vet. App. 426 (1994). Earlier Effective Date The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. §5110 (2012). 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 the later. 38 C.F.R. §3.400 (2017). In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the 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(b)(2)(i). The reference above to “the date entitlement arose” is not defined in the current statute or regulation. The U.S. Court of Appeals for Veterans Claims (CAVC) has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). “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, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The Board notes that, 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 (i.e., VA Form 21-526). 38 U.S.C.A §5101(a); 38 C.F.R. § 3.151(a). 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, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. See 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014). As such, any communication or action in this case, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. 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. Upon receipt of an informal claim, if a formal claim has not been filed, an application form must be forwarded to the claimant for execution. If the application form is 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. 38 C.F.R. § 3.155(a). 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). 6. Entitlement to an effective date earlier than August 7, 2012 for service-connected tinnitus The Veteran became service-connected for tinnitus in an August 2013 rating decision; the AOJ established August 7, 2012 – the day he filed his claim – as the effective date for service connection. He contends, however, that he should receive an earlier effective date. He noted during an August 2013 VA examination for tinnitus that he has experienced intermittent ringing in his ears since his military service. He contends that the ringing interferes with his hearing and concentration. Following a review of the record, the Board finds that the preponderance of evidence weighs against the Veteran’s claim, as there is no basis for an earlier effective date because the controlling law sets the date of a grant of service connection as not being earlier than the date of claim under the statute and as the date of claim or the date entitlement arose, whichever is later, under the regulation. 38 U.S.C. §5110(a); 38 C.F.R. §3.400. At the outset, the Board notes that tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. See Dorland’s Illustrated Medical Dictionary, 1322 (32nd ed. 2012). While tinnitus may affect the ability to hear, hearing loss and tinnitus are separate and distinct medical disabilities. See generally 38 C.F.R. §4.85, 4.87 DCs 6100, 6260. The Veteran did not indicate that he had any of these symptoms prior to his August 2013 VA examination. The Board notes that in February 2002, the Veteran complained of pain and drainage in his left ear, but he did not endorse having symptoms associated with tinnitus at this time. The AOJ denied service connection for an ear infection shortly thereafter in a December 2002 rating decision. Similarly, the Veteran was prescribed ear drops in April 2009 for cholesteatoma, but no mention of tinnitus or its symptoms was noted at that time. Overall, the Board finds no written statement prior to August 7, 2012 which can reasonably be construed as reflecting an intent to file a claim of entitlement to service connection for tinnitus. The Board has considered whether 38 C.F.R. §3.157(b), in effect prior to April 2014, is applicable. This provision stated that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, the Court has held that this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in §3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that §3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Specifically, VA medical records are not accepted as informal claims for disabilities where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999). Thus, any reference to tinnitus symptoms in the VA clinic setting cannot constitute a formal or informal claim under 38 C.F.R. §3.157(b). Pacheco, 27 Vet. App. 21 (2014); Sears, 16 Vet. App. at 249. On these facts, because the earliest effective date legally possible has been assigned, and no effective date for the award of service connection for tinnitus earlier than August 7, 2012 is warranted, the appeal for an earlier effective date is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For these reasons, the Board concludes that an effective date earlier than August 7, 2012 for the grant of service connection for tinnitus is not warranted, there is no reasonable doubt to be resolved, and the appeal is denied. 38 U.S.C. §§5107(b), 5110; 38 C.F.R. §§3.102, 3.400; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. 1. Entitlement to service connection for prostate cancer The Veteran contends that his prostate cancer is due to herbicide exposure during the Vietnam War. He served aboard the U.S.S. Hancock which is an aircraft carrier. See https://en.wikipedia.org/wiki/USS_Hancock_(CV-19)#Vietnam_War. He claims herbicide exposure by setting foot in Vietnam either by shore to ship mail delivery duties or secret military operations in Thailand and Vietnam. The AOJ initially denied the Veteran’s claim in September 2010, citing that there is no evidence of record to suggest that the Veteran was ever in Vietnam during his period of service. Specifically, the AOJ alleged that his receipt of the Vietnam Service Medal and his personnel records reflecting service in the official waters of Vietnam on the USS Hancock were insufficient to prove he was physically present within the land borders or inland waterways of Vietnam. However, the AOJ must obtain the deck logs from the USS Hancock during the Veteran’s Vietnam service to determine whether shore to ship mail deliveries were made. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran underwent a VA examination for bilateral hearing loss and tinnitus in August 2013. It was noted that he served in the Navy on an aircraft carrier; he states he was exposed to high levels of noise because he worked directly on the flight line. At the time of the examination, the Veteran’s right ear did not meet VA criteria to establish a hearing loss disability, while the Veteran’s left ear did reflect hearing loss to establish a disability for VA service connection purposes. However, the examiner opined that the Veteran’s hearing loss was less likely than not caused by or as a result of an event during his military service. She rationalized that the Veteran’s STRs show normal hearing both at entrance and separation and that the effects of hazardous noise exposure are present at the time of injury – meaning that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely, a finding presented by the Institute of Medicine Committee on Noise-Induced Hearing Loss and Tinnitus Associated with Military Service from WWII to the Present. However, during the same examination, the audiologist indicated the Veteran has a diagnosis of clinical hearing loss and that his tinnitus is at least as likely as not a symptom associated with the hearing loss. She also opined it was at least as likely as not that his tinnitus was caused by or the result of military noise exposure. She rationalized that the Veteran’s audiometric information recorded during service reveals a “significant threshold shift” and objective evidence supports the presumption that tinnitus was caused by military noise exposure. Given the discrepancies in the audiologist’s opinion for bilateral hearing loss and tinnitus, the Board seeks a second opinion as to the etiology of the Veteran’s hearing loss and requests that the Veteran present for a new examination. 3. Entitlement to service connection for stomach problems is remanded. The record reflects that the Veteran was previously diagnosed with chronic gastritis with bacilli resembling helicobacter pylori (“H pylori”) in June 2002. Since that time, the Veteran’s medical records reflect that he takes medication for his stomach and he has complained about stomachaches and pain over the years. However, the record reveals that the etiology of this stomach condition or any other has not been provided. As such, the Board will remand on this issue to afford the Veteran the opportunity to present for an examination to determine the nature and etiology of his stomach condition to include chronic gastritis. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from June 2017 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers. Thereafter, obtain and associate with the claims folder any private treatment records identified. 3. Associate with the claims file any Social Security Administration (SSA) records. 4. Obtain the deck logs from the USS Hancock during the Veteran’s Vietnam service to determine whether shore to ship mail deliveries were made. 5. Then, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his hearing loss. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has bilateral hearing loss, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such bilateral hearing loss occurred in or is otherwise etiologically related to the Veteran’s military service. The examiner should accept as fact that the Veteran was exposed to high levels of noise, based on his military occupational specialty that required him to work on the flight line of an aircraft carrier. The examiner should consider the following: • the concept of delayed hearing loss; • the Veteran’s STRs; • the August 2013 VA examination with opinion that the Veteran’s tinnitus was likely caused by military noise exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his stomach condition, to include chronic gastritis. The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has or has had a stomach condition to include chronic gastritis, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such stomach condition occurred in or is otherwise etiologically related to the Veteran’s military service. The examiner should consider the following: • the Veteran’s STRs; and • the June 2016 VA CAPRI medical records reflecting a diagnosis of chronic active gastritis with bacilli resembling H. pylori. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 7. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel