Citation Nr: 18146356 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-23 385 DATE: October 31, 2018 ORDER Entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for digital nerve injury resulting in numbness, arthritis, and decreased motion of the right index finger, is denied. Entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for right index finger scar is denied. Entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for headaches is remanded. Entitlement to an initial rating in excess of 10 percent for digital nerve injury resulting in numbness, arthritis, and decreased motion of the right index finger is remanded. Entitlement to a compensable initial rating for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. Entitlement to a compensable initial rating for right index finger scar is remanded. Entitlement to an initial rating in excess of 70 percent for PTSD prior to April 11, 2017, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT No communication was received from the Veteran prior to December 26, 2007, that may be construed as a formal or informal claim for entitlement to service connection for digital nerve injury resulting in numbness, arthritis, and decreased motion of the right index finger; right index finger scar; PTSD; bilateral hearing loss; or tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for digital nerve injury resulting in numbness, arthritis, and decreased motion of the right index finger have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.155, 3.160 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 2. The criteria for entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for right index finger scar have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.155, 3.160 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 3. The criteria for entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.155, 3.160 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 4. The criteria for entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.155, 3.160 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 5. The criteria for entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.155, 3.160 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1969 to February 1971. Following issuance of the statement of the case for the issues decided herein, additional evidence, to include VA treatment records, was associated with the record. The additional evidence is not relevant to the issues of entitlement to an earlier effective date for the grant of service connection for digital nerve injury resulting in numbness, arthritis, and decreased motion of the right index finger; right index finger scar; PTSD; bilateral hearing loss; and tinnitus. Accordingly, a remand for issuance of a supplemental statement of the case is not necessary, and the Board may proceed with appellate consideration of those issues. See 38 C.F.R. § 19.37. A January 2018 rating decision granted the Veteran a disability rating of 100 percent for PTSD from April 11, 2017. As this represents a total grant of the benefit sought with respect to the appeal for a higher initial rating for PTSD from April 11, 2017, that issue is not before the Board at this time. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). However, the issue of entitlement to a higher initial rating for PTSD prior to April 11, 2017, remains on appeal. In May 2018, the Veteran submitted a notice of disagreement as to the effective date for the grant of entitlement to a 100 percent for PTSD and the grant of basic eligibility to Dependents’ Educational Assistance, which were established in the January 2018 rating decision. Those issues are part of the appeal for a higher initial rating for PTSD prior to April 11, 2017, and therefore are considered to be currently on appeal. Therefore, a statement of the case need not be issued for those issues in response to the May 2018 notice of disagreement. The Veteran, through his representative, has contended that the service-connected disabilities for which he seeks higher initial ratings have rendered him unable to secure or follow a substantially gainful occupation. Therefore, the issue of entitlement to a TDIU has been raised as part of the increased rating issues on appeal, and is properly before the Board at this time as part and parcel to those issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the issues remanded herein, and there is no indication that evidence developed as part of those actions may be relevant to the issues decided herein. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Effective Date Issues The Veteran seeks entitlement to an effective date earlier than December 26, 2007, for the grant of entitlement to service connection for digital nerve injury resulting in numbness, arthritis, and decreased motion of the right index finger; right index finger scar; PTSD; bilateral hearing loss; and tinnitus. Neither the Veteran nor his representative has made any specific arguments as to why an earlier effective date is warranted or has identified an effective date that may be more appropriate than December 26, 2007. The effective date for a grant of service connection is the day following the date of 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 is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b). Regulations that were in effect prior to March 24, 2015, required that an informal claim “must identify the benefit sought.” See 38 C.F.R. §§ 3.155, 3.160 (2014). The regulations also provided that a claim may be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p) (2014). The regulations in effect since March 24, 2015, do not allow for informal claims that are not submitted on an application form prescribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160 (2015). The Veteran’s appeal was pending at the time that the regulations changed. The Board will apply the regulations in effect prior to March 24, 2015, as they allowed for informal claims and are therefore more favorable to the Veteran. Turning to the evidence of record, the Veteran submitted a VA Form 21-526, Veteran’s Application for Compensation and/or Pension, in May 2004 that clearly indicates he was seeking a nonservice-connected pension and not service-connected compensation benefits. Specifically, in Section I of that form he circled “Pension”, but did not circle “Compensation” or “Compensation and Pension”. He also completed Part D of that form, which relates to pension benefits. There is no indication that the Veteran intended the May 2004 VA Form 21-526 to be a claim for entitlement to service connection for any disability. In May 2004, the Veteran also submitted materials indicating that his doctors felt he was disabled and could not work, and that he was in receipt of Social Security Administration disability benefits. The Regional Office granted the Veteran entitlement to a nonservice-connected pension in an August 2004 administrative decision. The Board has carefully reviewed the May 2004 VA Form 21-526, the additional materials submitted by the Veteran at that time, and a June 2004 statement from the Veteran’s representative, and finds that those documents cannot reasonably be interpreted as requesting a determination of entitlement, or evidencing a belief in entitlement to, service connection for a disability of the finger, a psychiatric disability, a hearing loss disability, or tinnitus. Nothing in the documents reflect a belief in entitlement to service connection for those disabilities. In April 2005, VA contacted the Veteran to inform him that his nonservice-connected pension benefits would be reduced due to an increase in his Social Security Administration disability benefits. There is no indication that the Veteran requested or evidenced a belief in entitlement to service connection for any disability at that time. In September 2005, the Veteran submitted a VA Form 10-5345, Request for and Authorization to Release Medical Records or Health Information, in which he requested “All Service Personnel + Medical Records” “To review for possible claim”. Although that document evidences a belief in possible entitlement to a benefit, it does not sufficiently identify any particular benefit that may be sought. Moreover, it does not indicate a belief in entitlement to service connection for any disability. In October 2005, the Veteran submitted a VA Form 21-8416, Medical Expense Report, on which he listed medical expenses relating to dental care and eye examinations. That document also does not indicate a belief in entitlement to service connection for any disability. On December 26, 2007, VA received a VA Form 21-4138, Statement in Support of Claim, from the Veteran seeking service-connected compensation for a left knee condition, a lower back condition, bilateral hearing loss, chronic tinnitus, right pointer and middle finger conditions with scars, and PTSD. That document is the earliest dated evidence of record that may reasonably be interpreted as a claim for entitlement to service connection for digital nerve injury resulting in numbness, arthritis, and decreased motion of the right index finger; right index finger scar; PTSD; bilateral hearing loss; and tinnitus. In view of the foregoing, the Board concludes that December 26, 2007, the date VA received the Veteran’s original claim for entitlement to service connection for bilateral hearing loss, tinnitus, a finger disability and associated scar, and PTSD, is the earliest date that service connection may be awarded for digital nerve injury resulting in numbness, arthritis, and decreased motion of the right index finger; right index finger scar; PTSD; bilateral hearing loss; and tinnitus. The preponderance of the evidence is against the appeal for entitlement to an effective date earlier than December 26, 2007, for those disabilities, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND An April 2018 statement of the case lists among the evidence considered VA Medical Center treatment records dating from January 24, 2003, through January 16, 2018, “to include electronic review of records”. The record currently contains VA treatment records dating only through January 11, 2017. Any VA treatment records are within VA’s constructive possession, and the outstanding records in this case are potentially relevant to the issues remaining on appeal. A remand is required to allow VA to obtain them. With regard to the appeal for a compensable rating for bilateral hearing loss, the VA treatment records include notes dated April 13, 2009, and December 10, 2014, that both indicate that puretone and speech audiometry testing was completed on those dates. However, the VA treatment records do not include the results of that testing. Rather, the April 2009 and December 2014 notes state “Please see CPRS audiogram” for the results. On remand, the Agency of Original Jurisdiction must make appropriate efforts to obtain the results of the audiological testing performed in April 2009 and December 2014. The matters are REMANDED for the following action: Obtain the Veteran’s VA treatment records for the period from January 12, 2017, through the present. Appropriate efforts must be made to obtain the audiological testing results dated on or around April 13, 2009, and December 10, 2014, reportedly contained in CPRS. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel