Citation Nr: 18148858 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-16 510 DATE: November 8, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. An effective date of October 25, 2012, for the grant of service connection for ischemic heart disease is granted. An effective date of October 25, 2013, for the grant of service connection for tinnitus is granted. REMANDED Entitlement to service connection for dementia is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for ischemic heart disease is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has PTSD that is related to his period of active service. 2. The Veteran first communicated that he wished to file a claim for service connection in an informal claim that was received by VA on October 25, 2013, and preserved his effective date for claims for service connection for ischemic heart disease and tinnitus in a claim that was received by VA on December 20, 2013. 3. Service connection for ischemic heart disease was granted in light of the Veteran’s presumed in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R §§ 3.102, 3.303, 3.304(f) (2017). 2. The criteria for an effective date of October 25, 2012, for the grant of service connection for ischemic heart disease are met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.114, 3.400, 3.816 (2017). 3. The criteria for an effective date of October 25, 2013, for the grant of service connection for tinnitus are met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1966 to May 1968, which included service in the Republic of Vietnam (Vietnam). These claims come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, in September 2015. In April 2016, the Veteran withdrew his request for a Board hearing. Service Connection 1. Entitlement to service connection for PTSD. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for PTSD in particular requires medical evidence diagnosing the condition under the criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM), or by findings supported in an examination report; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a) (2017). Here, in July 2015, the Veteran reported that he was in constant fear for his life in Vietnam and witnessed the deaths of people he knew. See July 2015 Statement in Support of Claim for Service Connection for PTSD (VA Form 21-0781). During a contemporaneous VA examination, he reported that he was a senior wireman in Vietnam, he had to do perimeter duty at times, and a watch stand that was next to the one where he was stationed blew up. See July 2015 Initial PTSD Disability Benefits Questionnaire (DBQ). Notably, the examiner—a VA psychologist—reported that the Veteran has a stressor is enough to support a diagnosis of PTSD under the DSM-5, but also noted that the Veteran’s symptoms were not sufficient to meet the remaining PTSD criteria. More specifically, it was noted that the Veteran may have reported subjective mental health symptoms, but those symptoms did not rise to the level of chronicity required and/or are transient, or are not objectively identified on mental status examination. The Board observes, however, that the Veteran was diagnosed with PTSD by a VA psychiatrist during the appeal period. See January 2014 VA Psychiatrist Note. Thus, in light of the Veteran’s credible reports regarding his in-service stressors, the January 2014 diagnosis of PTSD, and the July 2015 opinion that the Veteran has reported stressors that are sufficient to support a diagnosis of PTSD, the Board finds that service connection is warranted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of having a current disability is met “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim”). Effective Date Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a) (2012). For VA compensation purposes, a “claim” is defined as “a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.” 38 C.F.R. § 3.1(p) (2017). Prior to March 24, 2015, an informal claim was “[a]ny communication or action indicating an intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a) (2014). It had to “identify the benefit sought.” Id. Thus, the essential elements for any claim, whether formal or informal, included “(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). At that time, VA looked to all communications from a claimant that may be interpreted as an applications or claim, both formal and informal, for benefits and was required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 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. 38 C.F.R. § 3.155. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. Id. 2. Entitlement to an effective date earlier than June 4, 2014, for the grant of service connection for ischemic heart disease. In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816 (2017); see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a “covered herbicide disease.” 38 C.F.R. § 3.816. Here, the Veteran served in Vietnam during the Vietnam War era and, therefore, is a “Vietnam veteran” as defined in the regulations. 38 C.F.R. § 3.307(a)(6) (2017). According to 38 C.F.R. § 3.816(b)(2) a “covered herbicide disease” includes diseases for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002, pursuant to the Agent Orange Act of 1991. Ischemic heart disease, to include coronary artery disease, was not added to the list of presumptive disabilities until August 31, 2010. 75 Fed. Reg. 53, 202 (Aug. 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, notice accompanying the issuance of the final August 31, 2010, rule specifically notes that the Nehmer provisions apply to the newly covered diseases, to include coronary artery disease. Id. In addition, the final rule makes clear that the effective date of this rule is the date of publication in the Federal Register, or August 31, 2010. Id (as the governing statute mandates that the effective date of the new regulation be the date of issuance of the final rule, the Secretary has no discretion to set an effective date for the new presumptions earlier than the date the final regulation is issued). Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if the claim for benefits was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816(c)(1)-(3). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). Certain additional exceptions are set forth that are not pertinent to this appeal. Here, the record shows that the Veteran served in Vietnam and was granted presumptive service connection for ischemic heart disease based on his presumed exposure to herbicides during such service. As discussed in further detail below, VA did not receive a claim for service connection for ischemic heart disease between May 3, 1989, and August 31, 2010, and thus, the provisions of 38 C.F.R. § 3.816(c)(1)-(2) are not for application and the effective date of the award must be determined in accordance with §§ 3.114 and 3.400. Under 38 C.F.R. § 3.114, an effective date one year prior to the date of the Veteran’s claim may be awarded when the evidence shows that he met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue (August 31, 2010) and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114(a). The Board observes that the RO granted service connection for ischemic heart disease from June 4, 2014, which is one year prior to the date of VA’s receipt of a June 4, 2015, application for benefits. See June 2015 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). The Board notes, however, that the first communication indicating an intent to apply for benefits was an informal claim for “nsc and service connection” benefits that was received by VA on October 25, 2013. See October 2013 Report of General Information (VA Form 21-0820). The October 2013 informal claim was “submitted” via a phone call with the Veteran that was memorialized by a VA representative. The VA representative who spoke to the Veteran advised the Veteran that a “VA Form” must be received within one year of their conversation to preserve the claim date and indicated that a VA claim form (VA Form 21-526) should have been sent to the Veteran. Subsequent correspondence indicates that VA sent VA Form 21-527EZ, which addresses his indication that he wished to file a claim for nonservice-connected (NSC) pension benefits, but a VA claim form (VA Form 21-526 or similar) was not sent. Notwithstanding the foregoing, the Veteran submitted a “Supplemental Claim for Compensation” (VA Form 21-526b) that was received by VA on December 20, 2013. In the December 2013 claim, he indicated that he wished to file a claim for service connection for ischemic heart disease. As noted previously, the former 38 C.F.R. § 3.155 indicated that an application form should be forwarded to a claimant for execution of a formal claim upon receipt of an informal claim, and if a formal claim is 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. Here, the December 2013 claim was submitted on a VA claim form (VA Form 21-526b) and was received within one year of the initial October 2013 informal claim for benefits. Thus, in light of §§ 3.155 and 3.114(a), the Board finds that the Veteran preserved the effective date of the informal claim that was received by VA on October 25, 2013, and an effective date of October 25, 2012, is warranted for the grant of service connection for ischemic heart disease. 3. Entitlement to an effective date earlier than June 4, 2015, for the grant of service connection for tinnitus. Similarly, the Board finds that the Veteran preserved the effective date of the informal claim that was received by VA on October 25, 2013, by way of the December 2013 claim that indicated that he wished to file a claim for service connection for tinnitus. Thus, the Board finds that an effective date of October 25, 2013, is warranted for the grant of service connection for tinnitus. 38 U.S.C. § 5110(a) (2012). REASONS FOR REMAND 1. Entitlement to service connection for dementia. The Board observes that all post-service treatment records in the Veteran’s claims file are VA records that are dated since January 2014. However, during a July 2015 examination, the Veteran’s wife reported that he only recently initiated VA care and received private healthcare prior to that time. See July 2015 Initial PTSD DBQ. On remand, VA should ask the Veteran to provide or authorize VA to obtain records of his non-VA treatment, as it may be relevant to his claims. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 2. Entitlement to service connection for bilateral hearing loss is remanded. As noted above, outstanding non-VA treatment records must be obtained, and thus, a remand of the Veteran’s claim for service connection for bilateral hearing loss is necessary. Additionally, regarding the claim for service connection for hearing loss, VA provided an examination and obtained a medical opinion in July 2015, but the Board finds that the opinion offered is inadequate because the examiner relied on the absence of an in-service showing of right ear hearing loss when she concluded that the Veteran’s current right ear hearing loss is not related to the Veteran’s service. Generally, “[38 C.F.R. §] 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.” Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, VA should obtain a medical opinion that adequately addresses the etiology of the Veteran’s right ear hearing loss. 3. Entitlement to an initial rating in excess of 10 percent for ischemic heart disease is remanded. 4. Entitlement to a TDIU is remanded. As noted above, outstanding non-VA treatment records must be obtained, and thus, a remand of the Veteran’s claims for an increased rating for a heart disability and a TDIU is necessary as well. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain any outstanding non-VA treatment records. Any other pertinent records identified during the course of the remand should be obtained and associated with the claims file. If any records requested are not available, this should be indicated in the file. 2. Notify the Veteran he may submit statements from himself and others who have first-hand knowledge of the nature and extent of in-service and post-service symptoms or manifestations of his disabilities. 3. Obtain an opinion to determine the likely etiology of the Veteran’s right ear hearing loss. The claims folder and any newly associated evidence must be made available to, and reviewed by, the reviewing clinician. Additionally, all findings, conclusions, and the rationale for all opinions expressed by the examiner should be provided in a report. The clinician is asked to provide an opinion as to whether it is at least as likely as not that the Veteran’s right ear hearing loss had its onset in service or was otherwise caused by his period of active service. In providing this opinion, the clinician should consider that the Veteran currently has service connection for tinnitus due to in-service noise exposure. The reviewing clinician should provide a clear rationale for all opinions expressed, which should reflect consideration of all the evidence of record, and reference supporting medical authority. If the requested opinion cannot be provided without resort to speculation, the clinician should so state and explain why an opinion cannot be provided without resort to speculation. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Wilson, Counsel