Citation Nr: 18143696
Decision Date: 10/23/18	Archive Date: 10/19/18

DOCKET NO. 15-13 097
DATE:	October 23, 2018
ORDER
Entitlement to an effective date of February 21, 2003 for the establishment of service connection for post-traumatic stress disorder (PTSD) is granted.
Entitlement to revision of a November 2004 rating decision on the basis of clear and unmistakable error (CUE) is dismissed as moot.
REMANDED
Entitlement to a 100 percent rating for PTSD prior to August 2, 2010 is remanded.
Entitlement to an effective date earlier than August 2, 2010 for entitlement to Dependents Education Assistance (DEA) benefits is remanded.
Entitlement to service connection for bilateral hearing loss is remanded.
FINDINGS OF FACT
1. The Veteran sought compensation and pension benefits for PTSD, depression, anxiety and tinnitus in a claim received by VA on February 21, 2003.
2. In September 2004, the Veteran submitted a second application for compensation benefits for tinnitus, PTSD, depression, anxiety, schizophrenia, bipolar disorder and a lung condition.
3. In October 2004, VA sent the Veteran a letter stating that it was working on his “service-connected compensation claim for schizophrenia and bi-polar condition.”
4. In a November 2004 written statement, the Veteran referenced the October 2004 notice letter and stated that he was “not seeking service connection as set forth in the September 2004 application,” but that he was seeking nonservice-connected pension benefits.
5. In a November 2004 rating decision, entitlement to nonservice-connected pension benefits was established, but the RO did not address the Veteran’s claims seeking service connection for PTSD, anxiety, depression or tinnitus.
6. The November 2004 written statement of the Veteran was not a knowing and intentional withdrawal of his claims seeking service connection for PTSD, anxiety, depression and tinnitus.
7. The evidence of record shows that the Veteran had a PTSD diagnosis at the time the February 21, 2003 application was received.
CONCLUSIONS OF LAW
1. The criteria for an effective date of February 21, 2003, for the establishment of service connection for post-traumatic stress disorder PTSD have been met. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.
2. The motion seeking revision of a November 2004 rating decision on the basis of CUE is dismissed as moot.  38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from January 1985 to January 1989 and September 1990 to December 1992, with service in Southwest Asia.  The Veteran also served on active duty for training (ACDUTRA) from June 1983 to August 1983.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2011, May 2012 and July 2012 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO).  
Effective Date/CUE
The Veteran seeks an earlier effective date for the establishment of service connection for PTSD, as well revision of a November 2004 rating decision on the basis of CUE.  These claims all arise from the RO’s determination that the Veteran withdrew claims seeking service connection for a psychiatric disorder and tinnitus in a November 2004 written correspondence.  Because the Board finds that the November 2004 written correspondence was a valid withdrawal of the Veteran’s disability compensation claims that were first listed in the September 2004 application, the Board finds that an entitlement to an effective date of February 21, 2003 for the establishment of service connection for PTSD is warranted.  The Board also finds that because the tinnitus claim remains pending, the Veteran’s motion seeking revision on the basis of CUE is moot.
Background
On February 21, 2003, VA received the Veteran’s application for benefits (VA Form 21-526) seeking service connection for tinnitus and three psychiatric disorders, including PTSD, depression and anxiety.  On the application, the Veteran circled that he was seeking both disability compensation and pension benefits.
On September 30, 2004, VA received a second application from the Veteran seeking service connection for tinnitus, PTSD, depression and anxiety, and also seeking service connection for bi-polar disorder, schizophrenia and a lung condition.  On this application he circled that he was only seeking disability compensation benefits.
In October 2004, VA sent a notification letter to the Veteran informing him of VA’s duty to assist and informing him of the evidence necessary to substantiate his claims seeking service connection for schizophrenia and bi-polar disorder only.  This letter did not refer to the claims seeking service connection for PTSD, depression, anxiety and tinnitus that had been made in the February 2003 application.
On November 12, 2004, prior to the RO making any determination on the Veteran’s claims, VA received a written, signed statement from the Veteran.  The correspondence stated as follows:
Reference your letter dated [October 20, 2004,] I wish to inform you that I do-not wish to claim service connection as stated on my VA Form 21-526 dated [September 30, 2004].
I do-wish to claim non-service connected pension.  Please review my 21-526 dated February 21, 2003 . . . .  All my income information on that form is still correct . . . .
(emphasis in original).  
In a November 30, 2004 rating decision, the RO granted entitlement to nonservice-connected pension.  The RO did not address any claim seeking service connection for a psychiatric disorder or tinnitus.  In a December 2004 letter, VA informed the Veteran of the November 2004 decision and further informed him that it accepted his November 12, 2004 statement as a withdrawal of his claim for service connection for all conditions listed on the VA Form 21-526 received on September 30, 2004, including those that had previously been identified on the February 2003 application.  
On August 2, 2010, VA received the Veteran’s supplemental claim seeking service connection for PTSD and to “reopen” a claim seeking service connection for bipolar disorder.  In a January 2011 rating decision, service connection for PTSD was established effective August 2, 2010, the date his supplemental claim was received by VA.  The Veteran disagreed with the initial rating assigned for PTSD, as well as the effective date.  He contends that he did not withdraw his February 2003 claims in the November 2004 written statement, as that statement was an “acknowleg[ment] that the VA Form 21-526 filed on September 20, 2004, was a duplicate claim of the unprocessed claim filed earlier on February 21, 2003.”  The Veteran asserts that it was not his intention to withdraw the claims identified in the February 2003 application.  The Veteran further contends that the February 2003 claims remained (or remain) unadjudicated, and thus, the correct effective date for the establishment of service connection for PTSD is February 2, 2003.  The Veteran further moved for revision of the November 2004 rating decision for the failure to adjudicate these pending claims.  See May 2011 Notice of Disagreement; August 2012 Notice of Disagreement; October 2015 Correspondence.
In a July 2012 rating decision, a 100 percent rating for PTSD was assigned effective August 2, 2010, and entitlement to DEA benefits was also granted effective this date.  The Veteran appealed this rating decision.
Effective Date Analysis
Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.
Here, the Board finds that the Veteran’s claim seeking service connection for PTSD was received by VA on February 21, 2003 and that the Veteran did not withdraw this claim, or his claim seeking service connection for tinnitus, in the November 2004 correspondence.  Once a veteran files a claim, the claim remains open and pending until final action is taken by the RO.  See Hanson v. Brown, 9 Vet. App. 29, 31 (1996).  “Although there is no regulation specifically governing the withdrawal of a claim that has not yet been decided by the RO [ ], it is well settled that withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”  DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (citing Hanson, 9 Vet. App. at 32; Kalman v. Principi, 18 Vet. App. 522, 524 (2004); Verdon v. Brown, 8 Vet. App. 529, 533 (1996); Isenbart v. Brown, 7 Vet. App. 537, 541 (1995).  Furthermore, with respect to all pro se pleadings, VA must give a sympathetic reading to the veteran’s filings.  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).  Thus, the issue before the Board is whether the Veteran’s November 2004 written correspondence, when viewed in the light most favorable to the Veteran, demonstrates that he made an unambiguous, explicit and knowing withdraw of all of his claims for service connection.
The Board finds that when read in the context of the other correspondence of record and in the light most favorable to the Veteran, the November 2004 correspondence does not constitute an explicit and unambiguous withdrawal of the Veteran’s claims for PTSD, depression, anxiety and tinnitus.  As noted above, the Veteran first raised these claims in an application received in February 2003.  In September 2004, he reiterated these claims in a second application, but also raised additional claims seeking service connection for schizophrenia, bipolar disorder and a lung condition.  The October 2004 correspondence from VA specifically referred to his claims for schizophrenia and bipolar disorder, and in response to this letter, he stated that he was not seeking service connection as stated in his September 2004 application.  Significantly, the Veteran specifically referenced the October 2004 duty to assist notice in his November 2004 Statement, and the duty to assist letter only discussed the claims for schizophrenia and bipolar disorder.  
Given this context, the Board reads the November 2004 statement as indicating the Veteran’s intention to withdraw only the new claims noted on his September 2004 application.  It cannot be said that the Veteran’s statement was an explicit and unambiguous withdrawal of the claims first raised in the February 2003 application, as those claims were not listed or referenced in the statement or the October 2004 duty to assist letter from VA.  At best, the November 2004 statement was ambiguous as to these claims, which should have prompted VA to seek clarification.  Instead of asking the Veteran to clarify which claims he intended to withdraw, the RO simply withdrew all pending service connection claims.  Thus, the Veteran’s claims for PTSD, anxiety, depression and tinnitus remained open as they were not adjudicated by the RO in the November 2004 rating decision or withdrawn by the Veteran.  
Regardless of the date of a claim, an effective date generally can be no earlier than the facts found, i.e., the date that a claimant’s disability first manifested and the date benefits were authorized. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  In this case, there is no question that compensation benefits were payable for PTSD and the evidence shows that the Veteran was diagnosed with PTSD by a VA provider in February 2003.  See February 2003 VA Hospital Discharge Summary.  Thus, an effective date of February 21, 2003 for entitlement to service connection for PTSD is warranted.
CUE
Where a claimant seeks revision of a decision that failed to adjudicate a claim, the Board must first determine whether a claim was raised and if so, whether it was denied in the rating decision being challenged.  See Richardson v. Nicholson, 20 Vet. App. 64, 72 (2006).  If the claim is still pending, it should be adjudicated and there is no need to reach CUE.  If it was finally decided, then it may be revised on the basis of CUE.  Id.
Here, the Board finds that the claim seeking service connection for PTSD, depression, anxiety and tinnitus were raised in the February 2003 application, not withdrawn, and not denied in the November 2004 rating decision being challenged.  The Veteran’s tinnitus claim has never been adjudicated, and his PTSD claim was granted in the January 2011 rating decision on appeal.  Thus, as these claims remained pending, there is no need to address whether revision on the basis of CUE is warranted.  For this reason, the motion is dismissed.

REMANDED ISSUES
Bilateral Hearing Loss
The Veteran’s VA medical records show that he has hearing loss and he reported military noise exposure.  January 2003 VA Medical Record.  Additionally, the entrance examination from the Veteran’s second period of service notes left ear hearing loss.  The Veteran has not been provided with a VA examination addressing whether his bilateral hearing loss had its onset during his first period of active duty service (or his period of ACDUTRA) or whether his hearing loss as noted at the August 1990 entrance examination was aggravated by his second period of service.  Remand is warranted for a VA examination to be provided.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Earlier Effective Dates – PTSD Rating and DEA
In light of the Board’s determination that an earlier effective date is warranted for the establishment of service connection for PTSD, the RO must assign the initial rating for PTSD in the first instance.  Thus, the appeal seeking earlier effective dates for the establishment of entitlement to DEA benefits and a 100 percent rating for PTSD must be remanded as inextricably intertwined issues.  Harris v. Derwinski, 1 Vet. App. 180 (1991).
The matter is REMANDED for the following action:
1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal.
2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss disability.  
The examiner should opine whether it is at least as likely as not that the Veteran’s bilateral hearing loss disability (1) is related to an injury, event, or disease, including noise exposure occurring during the Veteran’s first period of service or period of ACDUTRA; (2) began during a period of active service or ACDUTRA, (3) manifested within one year after discharge from service; or (4) was aggravated during the Veteran’s second period of service.
3. After assigning the initial rating for PTSD, readjudicate the issue of entitlement to earlier effective dates for the establishment of entitlement to DEA benefits and a 100 percent rating for PTSD.

 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Tracie N. Wesner, Counsel