Citation Nr: 18155452 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 17-51 892 DATE: December 4, 2018 ORDER Entitlement to an effective date earlier than October 9, 2013, for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than October 9, 2013, for the grant of service connection for right ear hearing loss is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to an initial compensable rating for right ear hearing loss is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for a left arm condition is remanded. Entitlement to service connection for a right arm condition is remanded. Entitlement to service connection for a left fifth finger condition is remanded. Entitlement to service connection for a right ring finger condition is remanded. Entitlement to service connection for a right breast condition is remanded. Entitlement to service connection for high cholesterol is remanded. Entitlement to service connection for high blood pressure is remanded. Entitlement to service connection for a frostbite condition is remanded. Entitlement to service connection for a pharyngeal condition is remanded. Entitlement to service connection for diabetes mellitus, Type II is remanded. Entitlement to service connection for a sleep condition is remanded. Entitlement to service connection for an acquired psychiatric disorder, (claimed as posttraumatic stress disorder (PTSD)), is remanded. FINDINGS OF FACT 1. On October 9, 2013, the Veteran filed a claim for entitlement to service connection for hearing loss and tinnitus. 2. Prior to October 9, 2013, there was no pending formal claim, informal claims or a written intent to file a claim for entitlement to service connection for hearing loss or tinnitus. 3. The Veteran is in receipt of the highest schedular rating for tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than October 9, 2013, for the grant of service connection for right ear hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date earlier than October 9, 2013, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to September 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision. The Board notes that the Veteran sought service connection for PTSD and mental health conditions. In accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Veteran’s claims for service connection for PTSD and mental health conditions have been expanded to include all acquired psychiatric disorders. Effective Date Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on new and material evidence under 38 C.F.R. § 3.156 (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). Similarly, the effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The statutory framework does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. Sears v. Principi, 16 Vet. App. 244 (2002). In order for the Veteran to be awarded an effective date based on an earlier claim, the Veteran has to show clear unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332 (1995). A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160(d). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160(e). VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R § 3.157. See Fed. Reg. 57,660, 57,695 (Sept. 25. 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim is 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); 3.155. The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. The Veteran has sought an effective date prior to October 9, 2013, for the grant of service connection for right ear hearing loss and tinnitus. Review of the Veteran’s claims file shows that VA received a letter from the Veteran on October 9, 2013, which requested VA to consider his correspondence a claim for compensation benefits for, among other claims, hearing loss and tinnitus. The aforementioned December 2014 rating decision on appeal granted service connection for right ear hearing loss and tinnitus with an effective date of October 9, 2013. A thorough review of the record does not show that any written communication by or on behalf of the Veteran in which service connection for hearing loss or tinnitus was requested or was received prior to his October 9, 2013, written correspondence. The record does not show that the Veteran filed any evidence which could be construed as seeking entitlement to service connection hearing loss or tinnitus prior to his October 2013 letter. As such, an effective date of October 9, 2013, is the appropriate effective date for the grant of service connection for right ear hearing loss and tinnitus. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400. Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating for Tinnitus The Veteran has requested a rating in excess of 10 percent for his service connected tinnitus. However, 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 the maximum schedular rating for tinnitus under Diagnostic Code 6260 has already been assigned, a higher schedular rating is not available, and the Veteran's claim for a disability rating in excess of 10 percent for tinnitus must be denied on the basis of a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND The Veteran has sought service connection for a number of conditions. A review of the Veteran’s file indicated that he received treatment at a VA facility and that these records are not associated with the Veteran’s claims file. Specifically, in January 2018, the Veteran submitted a copy of an April 2015 VA medical center letter which showed he had been provided a sleep study. However, the corresponding VA medical records are not associated with the Veteran’s claims file. The Board notes that VA’s duty to assist extends to obtaining “sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance.” Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). As such, the Board finds that remand is necessary to obtain any outstanding VA medical center records pertaining to the Veteran. Furthermore, in regard to the Veteran’s request for an initial compensable rating for his service-connected right ear hearing loss, the Board finds that the Veteran has stated his right ear hearing loss has increased in severity. As the Veteran’s last hearing examination was the November 2014 VA examination, which was over 4 years ago, a more contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). Additionally, in regard to his claim for service connection for left ear hearing loss, the Board notes that the Veteran underwent a VA examination regarding his hearing loss in November 2014. His DD 214 listed his military occupational specialty as that of cannon crewmen and the December 2014 rating decision conceded noise exposure in-service. The November 2014 VA examiner opined that the Veteran’s left ear hearing loss was less likely as not caused by his military service. In rendering the opinion, the examiner relied on the Veteran’s in-service audiograms, specifically his 1972 entrance and 1979 separation examinations. The examiner, however, did not indicate that a 1976 periodic audiological examination showing normal hearing had been reviewed or considered. As such, the Board finds the November 2014 VA examination regarding the Veteran’s left ear hearing loss inadequate for adjudication purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet. App. 1 (2001), 38 C.F.R. § 4.2. In regard to his claim for service connection for an acquired psychiatric disorder, a November 2014 VA examination found that the Veteran had an unspecified personality disorder. In January 2018, the Veteran submitted an October 2016 private medical record which found that he had depressive disorder, NOS, with anxious distress features aggravated by medical conditions which was related to the Veteran’s service and his service connected right ear hearing loss and tinnitus. The October 2016 private examiner did not address the conflicting diagnosis contained in the November 2014 VA examination. Based on these conflicting diagnoses, the Board finds that these examinations are not adequate for adjudication purposes and a new examination is warranted. The matters are REMANDED for the following action: 1. Associate with the record any VA clinical documentation not already of record pertaining to treatment of the Veteran, specifically including that provided after 2014. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant private medical treatment records for his acquired psychiatric disorder. After securing the proper authorizations where necessary, arrange to obtain all the records of treatment or examination from all the sources listed by the Veteran that are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Schedule the Veteran for an appropriate audiological examination, by an examiner who has not previously examined him, to determine the nature and likely etiology of his left ear hearing loss and the severity of his service-connected right ear hearing loss. The claims file and all pertinent records must be made available to the examiner for review. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left ear hearing loss had onset during service or is otherwise related to his active military service. The examiner is asked to address the Veteran’s in-service audiological examinations in 1972, 1976, and 1979. A discussion of the facts and medical principles involved (to include acoustic trauma and military noise exposure) including the Veteran’s service treatment records and lay assertions should be considered in giving this opinion. The examiner should note that the Veteran’s exposure to noise in service has been conceded. In regard to his left ear hearing loss, the examiner is reminded that it is not a sufficient rationale for a negative nexus opinion merely to state that the Veteran’s hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner must explain the rationale for all opinions, citing to supporting clinical data and/or medical texts or treatises as deemed appropriate. If the examiner determines that a requested opinion cannot be given without resort to speculation, the examiner must explain the reason for that conclusion. 4. Thereafter, schedule the Veteran for a VA medical examination, by an examiner who has not previously examined him, to determine the nature and etiology of any diagnosed acquired psychiatric disability. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed. All necessary tests and studies should be accomplished. The examiner should: (a.) Identify any diagnosed acquired psychiatric disability, to include PTSD, personality disorder, and/or depressive disorder, NOS; (b.) If there is a diagnosis of an acquired psychiatric disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such a disability(ies) had onset in service or within one year following separation from service, or was causally related to service; or was caused or aggravated (worsened beyond its natural progression) by the Veteran’s service connected hearing loss or tinnitus. The examiner must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. The Veteran’s lay assertions as to onset and continuity and symptomatology. The examiner is also asked to discuss the November 2014 VA examination and the October 2016 private examination. (Continued on the next page)   The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel