Citation Nr: 18151425 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-25 566 DATE: November 20, 2018 ORDER Entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for palindromic rheumatism, right elbow is denied. Entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for palindromic rheumatism, left elbow is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to an initial compensable rating for palindromic rheumatism, right elbow is remanded. Entitlement to an initial compensable rating for palindromic rheumatism, left elbow is remanded. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT On February 13, 2014, VA received the Veteran's claim of entitlement to service connection for palindromic rheumatism, both elbows. No communication or evidence received prior to February 13, 2014 could reasonably be interpreted as an informal or formal claim of entitlement to service connection for palindromic rheumatism, both elbows. CONCLUSION OF LAW The criteria for an effective date earlier than February 13, 2014, for the grant of service connection for palindromic rheumatism of the right and left elbows have not been met. 38 U.S.C. §§ 5101, 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2000 to October 2005. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 2014 rating decision, which granted service connection for palindromic rheumatism of the right and left elbow, each evaluated as 0 percent, effective February 13, 2014; that rating action denied the claim for a rating in excess of 70 percent for PTSD. That rating action also denied service connection for bilateral hearing loss and tinnitus. The Veteran perfected a timely appeal to that decision. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. During the pendency of the Veteran's claims, a claim for TDIU was considered and denied by the RO in a July 2017 rating decision. In his application for TDIU, the Veteran specified that he believed he was unemployable due to his PTSD and his service connected palindromic rheumatism. Although the Veteran did not initiate an appeal of the July 2017 decision, his appeal of the rating for his PTSD and palindromic rheumatism is sufficient to encompass the TDIU question, given that he specified that it was his disabilities that rendered him unemployable. Thus, the Board has jurisdiction over the TDIU issue. The Veteran's representative, a private attorney, withdrew representation in a September 2016 written statement (after providing advance notice to the Veteran as indicated in the September 2016 letter). The Veteran has not appointed a new representative, and the Board proceeds with the understanding that he is appearing pro se. 1. Entitlement to an effective date prior to February 13, 2014, for the grant of service connection for palindromic rheumatism, right and left elbows The Veteran asserts that he is entitled to an earlier effective date for service connection of his palindromic rheumatism, right and left elbows. The law regarding effective dates provides that, 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 increase, 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 application therefor. 38 U.S.C. § 5110 (a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a) (2012); 38 C.F.R. § 3.151 (a) (2017). At the time in question, the term "claim" or "application" meant 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) (2014). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155 (2017); 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim had not been filed, an application form was to be forwarded to the claimant for execution. 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. Even with respect to informal claims, such informal claim was required to identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). On February 13, 2014, VA received the Veteran's supplemental claim for compensation for service connection for palindromic rheumatism of both elbows (VA Form 21-526b). Submitted in support of the claim were VA progress notes dated from March 2007 through January 2014. These records do not reflect any complaints of or treatment for rheumatism of the elbows. The Veteran was afforded a DBQ examination for evaluation of the elbow and forearms in October 2014. The examiner reported a diagnosis of palindromic rheumatism, both elbows, from 2013. The examiner indicated that the palindromic rheumatism first manifest in the elbows; so, it is incorrect to say the condition has progressed to involve the elbows, since this has been seen and treated while the Veteran was on active duty. The examiner stated that, in any event, it is more likely than not that the Veteran's intermittent symptoms involving his elbows, are directly related to his service-connected palindromic rheumatism. The record does not contain any earlier statement or action indicating intent to file a claim for service connection for palindromic rheumatism of the elbows. In addition, there is no evidence that the Veteran clearly expressed intent to file a claim until the February 2014 filing. Contact with VA and treatment at VA medical centers are not themselves the filing of a claim of entitlement to service connection. Therefore, while the examiner indicated that the rheumatism in the elbows was first seen and treated in service, a preponderance of the evidence shows that VA did not receive a claim of entitlement to disability compensation benefits for rheumatism of the elbows until February 13, 2014. The Board has reviewed the evidence and determines that the criteria for an effective date prior to February 13, 2014 for the grant of service connection for palindromic rheumatism of the elbows have not been met. See 38 C.F.R. § 3.400. The record shows that the Veteran only filed one claim for entitlement to service connection for palindromic rheumatism of the elbows, on February 13, 2014. The regulations provide that the appropriate effective date is the later of either the date entitlement arose or the date of claim. 38 C.F.R. § 3.400. Therefore, February 13, 2014 is the date of claim and the appropriate effective date for the award of benefits. As there is no evidence that the Veteran filed a claim for service connection for palindromic rheumatism of the elbows any earlier than February 13, 2014, the Board finds that the preponderance of the evidence of record is against a grant of an earlier effective date for the grant of the Veteran's service-connected palindromic rheumatism of the elbows. Thus, an effective date earlier than the current effective date, February 13, 2014, is not warranted. REASONS FOR REMAND After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A (2012). 1. Entitlement to service connection for bilateral hearing loss and tinnitus is remanded. In the May 2016 Statement of the Case, the RO indicated that the Veteran underwent a VA Audiological examination on May 13, 2016; however, a copy of such examination, if it occurred, is not associated with the claims file. Any such VA examination report, if it exists, should be obtained and associated with the claims file. 2. Entitlement to an initial compensable rating for palindromic rheumatism, right and left elbows is remanded. As to the issue of increased rating for palindromic rheumatism of the elbows, a Supplemental Statement of the Case (SSOC) must be furnished to the Veteran when additional pertinent evidence is received after a previous Statement of the Case (SOC) or SSOC has been issued. 38 C.F.R. § 19.31. In this case, VA has added to the record a substantial amount of pertinent evidence since issuance of the most recent SOC, including VA progress notes dated from January 2014 to June 2017. As such, the claims on appeal should again be readjudicated. See 38 C.F.R. §§ 19.31, 20.1304(c) (2017). 3. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is remanded. With respect to the claim for a higher evaluation for PTSD, a substantial amount of relevant evidence, to include a recent VA examination report dated in March 2017 and VA progress notes, has been included in the claims file since the most recent SOC in May 2016. Since the additional evidence in question is neither duplicative of other evidence nor irrelevant, and since an SSOC pertaining to that evidence was not issued, this evidence must be referred back to the AOJ. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The claim should be readjudicated in an SSOC. See 38 C.F.R. §§ 19.31, 20.1304(c) (2017). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board finds that the Veteran's claim for TDIU is inextricably intertwined with his claims on appeal for higher ratings for service-connected PTSD and left ear hearing loss. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. Particularly, the AOJ should obtain and associate with the file a copy of the report of the May 2016 VA Audiological consultation, referenced in the May 2016 statement of the case. If such examination did not occur, the AOJ should make that fact clear in the record. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and etiology of his claimed bilateral hearing loss and tinnitus. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should indicate whether the Veteran has hearing loss and tinnitus in either ear and, if so, offer an opinion as to whether it is at least as likely as not that the Veteran’s hearing loss and tinnitus were incurred in or aggravated by service. The VA examiner should provide a detailed rationale for any opinion expressed. (Continued on the next page)   3. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issues remaining on appeal. All evidence received since the May 2016 SOC should be considered. If any benefit sought remains denied, the Veteran should be provided with another SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs