Citation Nr: 18144814 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-63 760 DATE: October 25, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date earlier than September 24, 2013 for the award of service connection for tinnitus is denied. Entitlement to an effective date earlier than September 24, 2013 for the award of service connection for bilateral hearing loss is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss for the period from September 24, 2013 to November 15, 2016, and in excess of 60 percent therefrom is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for a blood disorder (originally claimed as blood clots) is remanded. Entitlement to service connection for a sleep disability is remanded. Entitlement to service connection for a skin disability, to include as due to Agent Orange exposure is remanded. Entitlement to service connection for residuals of a head injury is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a cardiovascular disability (originally claimed as atrial fibrillation with chest pain) is remanded. Entitlement to service connection for residuals of removal of the gall bladder is remanded. Entitlement to service connection for a right hip disability is remanded. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a left hip disability is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, the maximum schedular rating authorized under VA regulatory provisions. 2. The first communication received by VA from the Veteran evidencing an intent to file claims for service connection for tinnitus and bilateral hearing loss was September 24, 2013. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 (2018). 2. An effective date earlier than September 24, 2013 for the award of service connection for tinnitus is not warranted. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 3. An effective date earlier than September 24, 2013 for the award of service connection for bilateral hearing loss is not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from November 1964 to December 1967, to include service in the Republic of Vietnam (RVN) from April 7, 1966 to October 20, 1966. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. By that rating action, the RO, in part, granted service connection for tinnitus and bilateral hearing loss; each disability was assigned an initial 10 percent rating, effective September 4, 2013--the date VA received the Veteran’s original claim for compensation for these disabilities. By that rating action, the RO also denied service connection for the remaining disabilities on appeal, and determined that new and material evidence had not been received to reopen previously denied claims for service connection for left and right hip disabilities. The Veteran appealed the July 2014 rating action and the RO’s determinations therein to the Board. By a November 2016 rating action, the RO assigned an initial 60 percent disability rating assigned to the service-connected bilateral hearing loss, effective November 15, 2016--the date of a VA examination report reflecting an increase in severity of this disability. Because the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation for the service-connected bilateral hearing loss remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In this case, the RO, in part, denied service connection for residuals of a right hip injury in an April 1994 rating decision. In denying the claim, the RO found, in pertinent part, that there was no evidence of any current right hip disability. The evidence considered by the RO at the time of the April 1994 rating action included service treatment records, July 1993 VA examination report and VA treatment and hospitalization reports, dated from June to September 1993. VA received new and material evidence within one year of the April 1994 rating decision. Specifically, VA received private treatment records disclosing, in part, that the Veteran had a diagnosis of chronic osteoarthritis of the right hip. (See reports, authored by Sports Medicine Clinic, dated from November 1973 to December 1985, labeled as “Medical Treatment Record-Non-Government Facility” and received into the Veteran’s Veterans Benefit Management System (VBMS) electronic record on December 27, 1995)). This evidence relates to the basis for the prior denial (i.e., existence of a current disability). As new and material evidence had been received within a year of the April 1994 rating decision, that decision as to the issue of entitlement to service connection for a right hip disability is not final. 38 C.F.R. § 3.156 (b) (2018). As such, the original claim for a right hip disability remains pending. This issue must be considered on a de novo basis, and it does not require the Board to reopen the issue before analyzing the merits of that claim. I. Merits Analysis i) Initial Rating-Tinnitus Claim By a July 2014 rating decision, the RO granted service connection for tinnitus with an evaluation of 10 percent. The Veteran contends he is entitled to a higher rating. The Veteran’s tinnitus is rated under DC 6260. 38 C.F.R. § 4.87. Under that diagnostic code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ii) Effective Date Claims-Grants for Service Connection for Tinnitus and Bilateral Hearing Loss Disabilities The Veteran seeks an effective date earlier than September 24, 2013 for the awards of service connection for tinnitus and bilateral hearing loss. By a July 2014 rating decision, the RO granted service connection for tinnitus and bilateral hearing loss, effective September 24, 2013. The Veteran contends that he is entitled to an earlier effective date for the awards of service connection for these disabilities. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. 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 latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of direct service connection 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. Under 38 C.F.R. § 3.400 (b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims for service connection for tinnitus and bilateral hearing loss were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit 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. If 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) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157 (b)(1) (in effect prior to March 24, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree. As analyzing the claims for effective dates earlier than September 24, 2013 for the awards of service connection for bilateral hearing loss and tinnitus will necessitate application of identical law to similar facts, the Board will discuss them collectively in its analysis below. The Board finds that the preponderance of the evidence of record is against an effective date earlier than September 24, 2013 for the awards of service connection for tinnitus and bilateral hearing loss. The Veteran asserts that he is entitled to an effective date earlier than September 24, 2013 for the awards of service connection for tinnitus and bilateral hearing loss; however, neither he nor his previous appointed attorney has provided any contention in support of this assertion. On September 24, 2013, the first communication from the Veteran expressing his intent to file claims for service connection for tinnitus and bilateral hearing loss was a written correspondence received by VA from the Veteran. (See Veteran’s letter to VA, labeled as “Third Party Correspondence” and received into VBMS on September 24, 2013)). In an April 2014 letter from the RO to the Veteran, it confirmed that the Veteran had filed these claims, and after development was undertaken, service connection for both disabilities, among others, was established from September 24, 2013 by the RO in the appealed July 2014 rating decision. As set forth above, the record reflects that the assigned effective date for the awards of service connection for tinnitus and bilateral hearing loss (September 24, 2013) is the date that the RO received the Veteran’s claims to establish service connection for these disabilities. Even if earlier VA examination(s) or hospitalization reports noted such symptoms or disabilities, which they do not, these reports could not be construed as informal claims because service connection for these disabilities had not been established. VA did not receive any claim, formal or informal, to establish service connection for tinnitus or bilateral hearing loss prior to September 24, 2013. Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). The Veteran has not pointed to any communication or document that could serve as an earlier, unadjudicated claim for benefits. In fact, neither the Veteran nor his previous appointed attorney have made any assertion explaining a theory of entitlement for the benefits sought. Having determined that the Veteran’s formal claims were filed no earlier than September 24, 2013, the Board must now determine when entitlement to service connection arose. As noted, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Thus, even if the Veteran had been experiencing tinnitus and bilateral hearing loss following his separation from service, September 24, 2013, is clearly the later of two dates specified by law. Hence, on this record, an earlier effective date is not assignable by law for either disability. In light of the above, the Board finds that the appropriate effective date for the grants of service connection for tinnitus and bilateral hearing loss is the effective date of September 24, 2013 assigned by the RO in the appealed July 2014 rating decision. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (c)(3)(ii). As there is no legal basis for assignment of an earlier effective date, the claims for earlier effective dates for the awards of service connection for tinnitus and bilateral hearing loss must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND The Board finds that prior to further appellate consideration of the remaining claims on appeal, further procedural and substantive development is required, as outlined below. First, a remand is required to obtain outstanding VA treatment records. Here, following issuance of the most recent Supplemental Statement of the Case (SSOC) in June 2017, an October 2017 Report of VA Hospitalization was received into the record. The October 2017 VA hospitalization report discloses that the Veteran was admitted to the hospital for chest pain. These records of hospital treatment, however, have not been associated with the electronic record. The Board notes that the most recent VA treatment records are dated through July 2017. As such, the issues on appeal must be remanded to ensure that the record is complete. Notably, VA’s obligation to obtain relevant governmental records in the context of an application to reopen a previously denied claim is not contingent upon the veteran first showing that new and material evidence has been submitted. Although under 38 U.S.C.A § 5103 (f) provides that with regard to previously disallowed claims that “[n]othing in this section shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured,” the use of the term “section” refers not to the enactment of the entirety of the VCAA, but instead to the plain meaning of the term “section” such as in 38 U.S.C.A § 5103 (f). Stated alternatively, the provisions of 38 U.S.C.A § 5103A (c)(3), which mandate that VA obtain relevant government records are in a different section of the Veterans Claims Assistance Act (VCAA). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012). As the outstanding VA treatment records might contain evidence as to the nature and extent of the Veteran’s claimed disabilities on appeal, notably his cardiovascular disability, they are potentially relevant to all claims and must be secured on remand. Second, a remand is required to have the RO issue an SSOC that addresses all evidence received into the record since issuance of a June 2017 SSOC. Here, after issuance of a June 2017 SSOC, additional evidence was received into the record and is relevant to the remaining claims on appeal. This evidence includes VA treatment reports, dated from June to July 2017, reflecting, in pertinent part, that the Veteran had been prescribed the medications, Warfarin and Trazodone, for his atrial fibrillation and sleeping problems, respectively; had been issued hearing aids for impaired hearing; and, had a previous history of stasis dermatitis. These reports have not been considered by the Agency of Original Jurisdiction (AOJ) with respect to the remaining issues on appeal. Although the Veteran’s initial substantive appeal was received after February 2, 2013, the automatic waiver of initial RO consideration does not apply in this case because the evidence was obtained by VA, rather than submitted by the Veteran. See 38 C.F.R. § 20.1304 (c) (2018) (requiring remand for initial AOJ review of pertinent evidence submitted after notification of certification of the appeal to the Board, “unless this procedural right is waived by the appellant or representative”). Here, as the Veteran has not waived initial AOJ consideration of the above-cited VA treatment reports, remand for issuance of an SSOC is required. See 38 C.F.R. §§ 19.31, 19.37 (2018). Finally, the Board finds that a remand is required to obtain a VA opinion to determine the nature and etiology of the Veteran’s skin disability. The Veteran has maintained that his skin disability is secondary to his in-service Agent Orange exposure in the RVN. The Veteran’s service treatment records (STRs) include a December 1967 separation examination reflecting, in pertinent part, that his skin was clinically evaluated as “normal.” The post-service evidence of record reflects that the Veteran was diagnosed with stasis dermatitis and decubitis. (See May 2014 VA Skin Diseases Benefits Questionnaire (DBQ), labeled as “C & P exam Emergency Medicine” and received into the Veteran’s Legacy Content Manager Document (LCMD) electronic record on June 11, 2014)). The Veteran’s service treatment records include excerpts from his military personnel records reflecting that he had served in the RVN from April 7, 1966 to October 20, 1966. Thus, his exposure to Agent Orange in the RVN is presumed. 38 C.F.R. § 3.307 (a)(6) (2018). The Veteran’s skin disability, diagnosed as stasis dermatitis and decubitis, are not diseases that may be presumptively service-connected for veterans who served in Vietnam during the Vietnam era under 38 C.F.R. § 3.309 (e) (2017). The Veteran, however, is not precluded from establishing service connection for these disabilities as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In light of his presumed Agent Orange exposure in the RVN, and the skin diagnoses noted above, the Board finds that a VA opinion is necessary to address the etiology of the Veteran’s skin disability, diagnosed as stasis dermatitis and decubitits, to include its relationship, if any, to his presumed Agent Orange exposure. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, to include all records dated from July 2017. Specifically, those records surrounding the Veteran’s October 2017 hospitalization for chest pain. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 2. After any additional evidence has been received pursuant to the above instruction and associated with the Veteran’s VBMS electronic record, refer the clams file to a qualified medical clinician. The purpose of the clinician’s review is to determine the etiology of the Veteran’s skin disability, currently diagnosed as stasis dermatitis and decubitus. The Veteran’s electronic claims file must be made accessible to the reviewing clinician for review. The reviewing clinician must respond to the following question/directive and provide a full statement of the basis for all conclusions reached. a. Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s skin disability (currently diagnosed as stasis dermatitis and decubitits), are etiologically related to, or had its onset during active military service, to include the Veteran’s confirmed exposure to Agent Orange or was manifested to a compensable degree within one year of separation from active duty in December 1967? b. The reviewing clinician should provide reasons for his or her respective opinion that takes into account relevant evidence as it relates to the Veteran’s skin particular disability. If a clinician cannot provide an opinion without resorting to speculation, he or she must explain why an opinion cannot be provided without speculation, whether the inability is due to the limits of the examiner’s knowledge or the limits of medical knowledge in general, or whether there is additional evidence that would permit the needed opinion to be provided. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel