Citation Nr: 18144267 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-42 517 DATE: October 24, 2018 ORDER Entitlement to an effective date earlier than January 30, 2015, for the award of service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than January 30, 2015, for the award of service connection for tinnitus is denied. Entitlement to an effective date earlier than January 30, 2015, for the award of service connection for dermatitis is denied. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for sciatica of the left lower extremity is remanded. Entitlement to service connection for sciatica of the right lower extremity is remanded. FINDINGS OF FACT The Veteran’s initial claim for service connection for bilateral hearing loss, tinnitus, and dermatitis, was received on January 30, 2015, and this date represents the earliest possible effective date for the award of service connection for bilateral hearing loss, tinnitus, and dermatitis. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 30, 2015, for the award of service connection for bilateral hearing loss are not met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. §§ 3.1(p), (r), 3.151(a), 3.159, 3.400(b)(2) (2017). 2. The criteria for an effective date earlier than January 30, 2015, for the award of service connection for tinnitus are not met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.1(p), (r), 3.151(a), 3.159, 3.400(b)(2). 3. The criteria for an effective date earlier than January 30, 2015, for the award of service connection for dermatitis are not met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.1(p), (r), 3.151(a), 3.159, 3.400(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1985. In general, except as otherwise provided, the effective date of an evaluation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 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 applicable in this case, 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). 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, the AOJ will forward an application form to the claimant for execution. If the AOJ receives a complete application from the claimant within one year from the date it was sent, the AOJ will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The Court has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support a claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). By way of background, the Veteran’s claim for service connection for bilateral hearing loss, tinnitus, and a skin disorder was received on January 30, 2015. In April 2015, the agency of original jurisdiction (AOJ) requested that the Veteran resubmit his claim and, on June 2, 2015, he did so. The December 2015 rating decision on appeal mistakenly noted that the Veteran’s original claim for service connection was received on June 2, 2015; nevertheless, the AOJ granted service connection for bilateral hearing loss, tinnitus, and dermatitis, effective January 30, 2015, the date his informal claim was received. In his December 2015 notice of disagreement, the Veteran argued that the appropriate effective date for the award of service connection was February 1, 2014. In a March 2016 statement, the Veteran argued that the appropriate effective date for the award of service connection was January 30, 2014. In reviewing the claims file, there is no communication received by VA prior to his January 30, 2015 claim that can be interpreted as an informal service connection claim for bilateral hearing loss, tinnitus, and a skin disorder, including any formal or informal claim for service connection from January or February 2014. Indeed, in correspondence received from the Veteran prior to the award of service connection for hearing loss, tinnitus and dermatitis disabilities, the Veteran expressed concern about what date would be interpreted as his date of claim. See a June 2, 2015 Statement in Support of Claim. In this June 2015 statement, the Veteran wished to make clear that although he was resubmitting a claim at that time per the request of the regional office, he wanted “the original date of claim to be . . . 01/30/2015.” In awarding service connection for hearing loss, tinnitus and dermatitis, the RO recognized the Veteran’s January 2015 claim, and assigned the correct effective date. January 30, 2015 is the earliest effective date allowable under the applicable criteria discussed above. 38 C.F.R. §§ 3.400(b)(2). The law and regulations governing effective dates preclude the assignment of an effective date earlier than January 30, 2015. As such, his claims for earlier effective dates must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disorder is remanded. The Veteran claims entitlement to service connection for a lumbar spine disorder as a result of his military service. Specifically, he argues that he injured his back during service, and that he suffered from low back problems since. See November 2016 VA Form 21-0958, Notice of Disagreement. He says that he received ongoing treatment for his low back problems since discharge but, due to the length of time that has passed, he is unable to obtain copies of his earlier post-service treatment records. In October 2016, the Veteran underwent a VA examination in connection with his claim for service connection for a lumbar spine disorder. Although the examiner provided a negative opinion as to whether his currently-diagnosed mild bone and disc degenerative changes at L4-S1 was related to his military service, the examiner’s opinion relies largely on the absence of a chronic back pain during service, as well as the lack of any objective treatment following service until 2015, without adequately discussing the Veteran’s lay statements concerning the onset of his symptoms during service, and the continuity of symptoms since his discharge. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). To ensure that any opinion as to whether the Veteran’s lumbar spine disorder is related to his military service is based an adequate review of the evidence, including the Veteran’s competent lay statements concerning the onset and continuity of his symptoms, the Board finds that a new VA examination is necessary. On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through June 30, 2016, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. 2. Entitlement to service connection for sciatica of the left lower and right lower extremities is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for a lumbar spine disorder could significantly impact a decision on the issues of entitlement to service connection for sciatica of the left lower and right lower extremities, these issues are inextricably intertwined. See Parker v. Brown, 7 Vet. App. (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, a remand of these claims is required. The matters are REMANDED for the following action: 1. Associate any VA treatment records dated from June 30, 2016, to the present with the Veteran’s claims file. 2. Send the Veteran a letter requesting that he submit, or authorize VA to obtain on his behalf, any additional records of private care he may have in his possession pertaining to the issues still on appeal. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. After associating these records with the file, the Veteran should be afforded a new VA examination to determine whether his currently-diagnosed lumbar spine disorder is related to his military service. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of the claimed disability. Following a review of the entire record, to include the Veteran’s lay statements concerning onset and continuity of symptomatology, the examiner(s) should address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that any lumbar spine disorder had its onset during, or is otherwise related to his military service, to include his in-service treatment for low back pain in April and September 1982? A clearly-stated rationale for any opinion offered should be provided. 4. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel