Citation Nr: 18150538 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 18-17 146 DATE: November 15, 2018 ORDER Entitlement to an effective date prior to August 2, 2012 for the grant of service connection for hypertensive heart disease with intermittent sinus tachycardia is denied. Entitlement to an effective date prior to August 2, 2012 for the grant of service connection for high blood pressure is denied. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for thyroid disease is remanded. Entitlement to an increased disability evaluation for hypertensive heart disease with intermittent sinus tachycardia, initially rated as 30 percent disabling, is remanded. Entitlement to an increased disability evaluation for high blood pressure, initially rated as noncompensable, is remanded. FINDINGS OF FACT 1. The claim of entitlement to service connection for hypertensive heart disease with intermittent sinus tachycardia was granted following a claim of entitlement to service connection which was received by the RO on August 2, 2012. At the time of the August 2, 2012 claim for service connection for hypertensive heart disease with intermittent sinus tachycardia, there was no prior claim for service connection of hypertensive heart disease with intermittent sinus tachycardia. 2. The claim of entitlement to service connection for high blood pressure was granted following a claim of entitlement to service connection which was received by the RO on August 2, 2012. At the time of the August 2, 2012 claim for service connection for high blood pressure, there was no prior claim for service connection of high blood pressure. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to August 2, 2012 for the grant of service connection of hypertensive heart disease with intermittent sinus tachycardia are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.400 (2018). 2. The criteria for an effective date prior to August 2, 2012 for the grant of service connection of high blood pressure are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the U.S. Army from January 2007 to July 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in San Juan, Puerto Rico. 1. Entitlement to an effective date prior to August 2, 2012 for the grant of service connection for hypertensive heart disease with intermittent sinus tachycardia 2. Entitlement to an effective date prior to August 2, 2012 for the grant of service connection for high blood pressure Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran. This letter explained the evidence necessary to substantiate the Veteran’s claims of entitlement to service connection and the legal criteria for entitlement to such benefits; the claims for earlier effective dates are downstream from the grant of service connection. The letter also informed her of her and VA’s respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of her claims. The Board has reviewed the Veteran’s statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p) (2018). The Board notes that, 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, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. Id. at 57,686. The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). In arguing for the assignment of earlier effective dates for the awards of service connection, the Veteran argues that her award of service connection should be retroactive; the Veteran did not specify a retroactive effective date to which she felt entitled, nor did she state her reasons for seeking an earlier effective date. Here, the Veteran separated from service in 2007, but she did not file claims for service connection of hypertensive heart disease with intermittent sinus tachycardia and high blood pressure within one year of his separation from service in 2007; thus, an effective date of the date after separation from service is not warranted. 38 U.S.C. § 5110(b); 38 C.F.R. 3.400(b) (2018). Review of the record shows that the first claim demonstrating an intent to apply for benefits for hypertensive heart disease with intermittent sinus tachycardia and high blood pressure was received on August 2, 2012. Thus, an earlier effective date based on a prior, pending, unadjudicated claim is not warranted. Id. To the extent that the Veteran argues that she should be entitled to an earlier effective date based on the diagnosis of hypertensive heart disease with intermittent sinus tachycardia and high blood pressure, the Board points out that there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability or treatment therefor. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). See also 38 C.F.R. § 3.155(a) (requiring claimants to file formal application after informal claim is accepted and proper form is provided). Thus, her date of first treatment cannot serve as the date of claim in this case as there was no intent to file for benefits at that time. As noted, an effective date is assigned based on when entitlement arose or the date the claim was received, whichever is later. In this case, the Board acknowledges that the Veteran reports, and the record confirms, in-service onset for her hypertensive heart disease with intermittent sinus tachycardia and high blood pressure. However, the date the Veteran’s claims for service connection for hypertensive heart disease with intermittent sinus tachycardia and high blood pressure were received was on August 2, 2012. No prior claims are of record, and even if entitlement arose in service, the date of receipt of the claims is the later of the dates, and is the proper effective date here. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2018). Therefore, under the laws and regulations pertaining to effective dates, August 2, 2012, is the appropriate effective date for the grant of entitlement to service connection for hypertensive heart disease with intermittent sinus tachycardia and high blood pressure. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disorder is remanded. 2. Entitlement to service connection for thyroid disease is remanded. The Board notes that the Veteran asserts that she has a lumbar spine disorder and thyroid disease as a result of her service. Nevertheless, the Veteran has not yet been afforded VA examinations in connection with the claims for service connection of a lumbar spine disorder and thyroid disease. Accordingly, the Board finds that the Veteran should be afforded a VA examination regarding the claims for service connection of a lumbar spine disorder and thyroid disease. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). 3. Entitlement to an increased disability evaluation for hypertensive heart disease with intermittent sinus tachycardia, initially rated as 30 percent disabling, is remanded. 4. Entitlement to an increased disability evaluation for high blood pressure, initially rated as noncompensable, is remanded. The Veteran asserts that the symptoms of her service-connected hypertensive heart disease with intermittent sinus tachycardia and high blood pressure are more severe than presently evaluated. The Board observes that Veteran has not been afforded VA examinations since her claims for service connection, in June 2013. As such, the Veteran must be provided with examinations which consider the current severity of her service-connected disabilities on appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the claims on appeal should be associated with the Veteran’s claims file.   The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his service-connected and nonservice-connected disabilities on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 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. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any lumbar spine disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s lumbar spine disorder is related to active service. The VA examiner must address, with specificity, the medical evidence of record, including the medical opinion obtained from A.A., M.D. in May 2018. The provider is advised that the Veteran is competent to report symptoms, including continuity of symptoms, treatment, and diagnoses and the examiner must take into account, along with the other evidence of record, the Veteran’s statements in formulating the requested opinions. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 3. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any thyroid disease. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s thyroid disease, if any, is related to active service. The VA examiner must address, with specificity, the medical evidence of record, including the medical opinion obtained from A.A., M.D. in May 2018. The provider is advised that the Veteran is competent to report symptoms, including continuity of symptoms, treatment, and diagnoses and the examiner must take into account, along with the other evidence of record, the Veteran’s statements in formulating the requested opinions. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 4. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of her service-connected hypertensive heart disease with intermittent sinus tachycardia and high blood pressure. The claims file should be made available to the examiner for review in connection with the examination. Any indication that the Veteran’s complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should provide a complete rationale for any opinions provided. 5. After completing all indicated development, the RO should readjudicate the Veteran’s claims for increased disability ratings for service-connected hypertensive heart disease with intermittent sinus tachycardia and high blood pressure, as well as the claims of entitlement to service connection for a lumbar spine disorder and thyroid disease. If any of the claims remain denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel