Citation Nr: 18142599 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-45 087 DATE: October 17, 2018 ORDER Entitlement to an effective date earlier than July 9, 2003, for the award of service connection for major depressive disorder with anxiety is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for left elbow internal derangement prior to August 7, 2012, and in excess of 20 percent thereafter, is remanded. Entitlement to an initial compensable rating for left elbow scar is remanded. Entitlement to an initial rating in excess of 30 percent for major depressive disorder with anxiety prior to September 8, 2015, in excess of 70 percent thereafter, is remanded. Entitlement to an initial compensable rating for bilateral hearing loss prior to December 8, 2015, and in excess of 40 percent thereafter, is remanded. FINDINGS OF FACT 1. The appellant’s claim of entitlement to service connection for depression and anxiety was received by VA on July 9, 2003. 2. In a September 2015 rating decision, the RO granted service connection for major depressive disorder with anxiety and assigned an effective date of July 9, 2003. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than July 9, 2003, for the grant of service connection for major depressive disorder with anxiety have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 20.1100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant served on active duty in the Army from January 1964 to December 1966. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In addition to the issues on appeal addressed in this decision, the Board notes that in April 2018, the appellant submitted a substantive appeal with respect to the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to September 8, 2015. Unlike the issues addressed herein, the TDIU issue has not yet been certified to the Board. Indeed, the Board’s review of the claims file reveals that the Agency of Original Jurisdiction is still taking action on this issue. As such, the Board will not accept jurisdiction at this time. Earlier Effective Date for the Award of Service Connection for Major Depressive Disorder with Anxiety Applicable Law As a preliminary matter, 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. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Thus, the applicable regulations are cited below. 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 an application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim is received within one year of separation from service, the effective date is generally the day following separation from service. See 38 C.F.R. § 3.400. Otherwise, the effective date is the receipt of the claim or the date entitlement arose, whichever is later. Id. A “claim” 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), 3.151. Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. Such an informal claim must identify the benefit sought. Id. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Under 38 C.F.R. § 3.157(b)(1), a report of examination or hospitalization may constitute an informal claim. However, “[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit.” Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). 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); but see Sellers v. Wilkie, No. 16-2993, 2018 U.S. App. Vet. Claims LEXIS 1114 (Vet. App. Aug. 23, 2018) (a general statement of intent to seek benefits, combined with a reasonably identifiable in-service medical diagnosis reflected in service treatment records in VA’s possession prior to the RO decision on the claim, may be sufficient to constitute a claim for benefits). Analysis The appellant seeks an effective date earlier than July 9, 2003, for the award of service connection for major depressive disorder with anxiety. Under the facts of this case, however, the appellant is currently in receipt of the earliest effective date legally available. On July 9, 2003, VA received the appellant’s claim of entitlement to service connection for depression and anxiety problems. Ultimately, the RO granted service connection in a September 2015 rating decision. The RO assigned an effective date of July 9, 2003, the date of receipt of the claim. As set forth above, the law clearly provides that the effective date of an award of compensation based on a claim received more than one year after separation is the receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. In this case, the appellant’s original claim was received by VA on July 9, 2003. The appellant has pointed to no earlier pending claim of service connection, formal or informal, and a review of the record reveals no communication which could be construed as a claim of service connection prior to July 9, 2003. See 38 C.F.R. § 3.151, 3.155. In fact, the nature of the appellant’s theory of entitlement with respect to this claim is unclear. In the substantive appeal, the appellant’s attorney referenced McGrath v. Gober, 14 Vet. App. 28 (2000), in support of the proposition that an earlier effective date for the award of major depressive disorder with anxiety be assigned in accordance with facts found, rather than when the evidence was submitted. However, while the facts of McGrath included a previous claim of service connection which was never adjudicated, as set forth above, the record here contains no indication of a pending claim prior to the assigned effective date and the attorney has not argued otherwise. The Board is cognizant of the Court of Appeals for Veterans Claims (Court)’s recent holding in Sellers v. Wilkie, No. 16-2993, 2018 U.S. App. Vet. Claims LEXIS 1114 (Vet. App. Aug. 23, 2018), that a general statement of intent to seek benefits, combined with a reasonably identifiable in-service medical diagnosis reflected in service treatment records in VA’s possession prior to the RO decision on the claim, may be sufficient to constitute a claim for benefits. However, the Board finds that the instant matter is distinguishable. There is no reasonably identifiable in-service medical diagnosis of depression or anxiety in the appellant’s service treatment records. Indeed, service treatment records are negative for a psychiatric diagnosis. The appellant and his attorney do not contend otherwise. Rather, service connection for major depressive disorder with anxiety was granted on a secondary basis to the appellant’s service-connected scar, residual of cyst removal from back of neck and behind left ear. The Board observes post-service VA and private clinical notes which appear to indicate that the appellant may have had psychiatric symptoms related to the scar prior to July 9, 2003. For example, a VA physician in May 1999 indicated that the appellant should be allowed to wear his hair longer to cover such scarring “for psychologic as well as cosmetic reasons.” A February 2000 letter from a psychiatrist states that the appellant has an anxiety disorder, which is made worse from social embarrassment when his scarring is visible. A Vet Center counselor indicated in September 2000 that the appellant’s anxiety may be related to his scar. In this case, while the evidence reflects the clinical presence of a psychiatric disability earlier than July 9, 2003, an effective date of an award of service connection is not based on the earliest medical evidence showing a diagnosis or a causal connection, but on the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). Although clinical records may, in some instances, be considered informal claims under 38 C.F.R. § 3.157(b)(1), this provision does not provide a basis upon which to award an earlier effective date, as the clinical evidence does not pertain to examination or treatment of a disability for which service connection has been previously established. Pacheco v. Gibson, 27 Vet. App. 21 (2014); see also Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff’d 724 F.3d 1325 (Fed. Cir. 2013) (section 3.157(b)(1) requires that a report of examination or hospitalization indicate that the veteran’s service-connected disability worsened since the time it was last evaluated because, “[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1),” creating an unnecessary and unwarranted adjudicative burden on VA); MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006) (stating that 38 C.F.R. § 3.157(b)(1) “makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability”). In other words, VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. In summary, the Board finds that a claim of service connection for anxiety or depression, formal or informal, was not received by VA prior to July 9, 2003. The effective date to be assigned based on a claim received more than one year after separation is the receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Under the undisputed facts in this case, therefore, there is no legal basis for awarding an effective date earlier than July 9, 2003, for the award of service connection; and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). REASONS FOR REMAND Left Elbow Internal Derangement and Associated Scar The appellant was last afforded a VA examination to determine the severity and manifestations of his left elbow internal derangement in August 2012, during which the appellant endorsed flare-ups. It is well established that the mere passage of time alone does not render a medical examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007); Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). However, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the U.S. Court of Appeals for Veterans Claims held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if so, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Id. at 32. The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). The August 2012 VA examiner did not adequately address the appellant’s reported flare-ups. In light of Sharp, a new examination is necessary. With respect to the claim for an initial compensable rating a left elbow scar, the criteria for rating scars under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, and 7805 were amended effective October 23, 2008. Service connection for left elbow scar has been in effect since September 20, 2002. Thus, the examination to determine the severity and manifestations of the appellant’s left elbow disability should report the severity of the appellant’s left elbow scar, in accordance with the regulations in effect prior to and since October 23, 2008. The Board observes that, in the July 2016 brief, the appellant’s attorney cited some evidence with respect to neurological symptomatology, including a March 2003 letter from Dr. D.W., which noted bilateral carpal tunnel syndrome and left ulnar neuropathy at the elbow. The Board observes that service connection has been denied for carpal tunnel syndrome and left elbow neuropathy, to include as secondary to service-connected internal derangement of the left elbow. Indeed, no substantive appeal was filed following issuance of the April 2017 SOC which addressed the application to reopen the previously denied claim of service connection for left elbow neuropathy. Also in such July 2016 brief, the appellant’s attorney has argued that the severity and manifestations of his left elbow internal derangement warrant referral to the Director, Compensation Service, for consideration of an extraschedular rating. The Board makes no finding at this time whether such referral is warranted, particularly as the appellant will be afforded a new examination upon remand. However, upon remand, the RO should consider whether such referral is warranted when readjudicating the claim. Bilateral Hearing Loss With respect to the appellant’s hearing loss claim, he reported in April 2016 that he sees Dr. H.M., an ear, nose, and throat doctor at Ear, Nose, and Throat Center, Inc., annually. He also reported a diagnosis of benign paroxysmal positional vertigo and complained of pain associated with sudden, loud noises. Records from Dr. H.M. were previously received in August 2008, October 2008, and July 2010. There is thus an indication that the appellant may have symptoms associated with his bilateral hearing loss which may be separately compensable. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Thus, remand is required to undertake appropriate efforts to obtain all records from Dr. H.M. and Ear, Nose, and Throat Center, Inc. and to conduct an examination for the purpose of identifying all symptomatology which is associated with the appellant’s service-connected bilateral hearing loss. Major Depressive Disorder with Anxiety The Board finds that a new examination to determine the current severity and manifestations of the appellant’s service-connected major depressive disorder with anxiety is warranted. Since his last examination for compensation and pension purposes in September 2015, he endorsed depressive periods which last for more than two weeks at a time. See e.g. July 2017 mental health note. These depressive episodes, when they occur, are manifested by hopelessness, anhedonia, worthlessness, insomnia, and low energy. Based on this report of two-week depressive episodes, it appears that the severity of his service-connected psychiatric disorder may have increased since the September 2015 examination. Additionally, the July 2017 clinical note, and other VA medical records, were associated with the claims file following issuance of the April 2017 SOC with respect to entitlement to an increased rating for major depressive disorder with anxiety. When pertinent evidence is submitted by an appellant or representative and is received by the Board pursuant to 38 C.F.R. § 19.37(b), the claim must be remanded to the AOJ for review, unless this right is waived or the benefit may be fully allowed. 38 U.S.C. § 7105(e) provides that waiver of initial AOJ review of evidence submitted by the claimant or his representative to the AOJ or the Board is presumed in cases where, as here, the substantive appeal was filed after February 2, 2013. See 38 U.S.C. § 7105(e); VA Fast Letter 14-02 (May 2, 2014). The Board notes that the evidence was not submitted but rather was created by VA. In these circumstances, initial AOJ review of this evidence is warranted. The matters are REMANDED for the following action: 1. Associate any and all outstanding VA medical records with the claims file. 2. After obtaining any necessary information and authorization from the appellant, the AOJ should undertake the necessary efforts to obtain and additional private medical records pertinent to the appellant’s claims from Dr. H.M. and Ear, Nose, and Throat Center, Inc. The Board is particularly interested in those records created since July 2010, when records were last received from these private providers. 3. Afford the appellant an examination to determine the severity of his service-connected left elbow internal derangement. The claims file should be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner should specifically delineate all pathology and symptoms attributable to the service-connected left elbow internal derangement and associated scar. The examination should be conducted in accordance with the current disability benefits questionnaire. The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. With regard to the appellant’s left elbow scar, the examiner should also report the area of the scar and whether such is deep, causes limited motion, is unstable, and/or painful. 3. Afford the appellant a VA medical examination to ascertain the current severity of his service-connected major depressive disorder with anxiety. Access to the appellant’s VA claims file should be made available to the examiner for review in connection with the examination. The examiner should report all signs and symptoms necessary for rating the appellant’s major depressive disorder with anxiety under the General Rating Formula for Mental Disorders. The examiner should address the level of social and occupational impairment attributable to the appellant’s major depressive disorder with anxiety. 4. Afford the appellant a VA medical examination to ascertain the current severity of his service-connected bilateral hearing loss. Access to the appellant’s VA claims file should be made available to the examiner for review in connection with the examination. In addition to audiometric findings, the examiner should identify any other symptoms associated with the service-connected bilateral hearing loss disability, to include indicating whether any benign paroxysmal positional vertigo or pain associated with loud noises is part and parcel of the service-connected hearing loss disability. 5. When readjudicating the claim of entitlement to an increased rating for left elbow internal derangement, the RO should consider whether referral to the Director, Compensation Service, is warranted, as argued by the attorney in her July 2016 brief. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel