Citation Nr: 18156916 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-53 550A DATE: December 11, 2018 ORDER An effective date earlier than April 30, 2012 for the grant of service connection for the asthma disability is denied. An effective date earlier than April 30, 2012 for the grant of service connection for the posttraumatic stress disorder (PTSD) disability is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to a rating higher than 10 percent for the service-connected asthma disability is remanded. Entitlement to a rating higher than 70 percent for the service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s original service connection claim for asthma was received on April 30, 2012, and no other statement can be construed as a formal or informal service connection claim for asthma prior to this date. 2. The Veteran’s original service connection claim for PTSD was received on April 30, 2012, and no other statement can be construed as a formal or informal service connection claim for PTSD prior to this date. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date prior to April 30, 2012 for the award of service connection for asthma are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2017). 2. The criteria for the assignment of an effective date prior to April 30, 2012 for the award of service connection for PTSD are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from October 2004 to March 2005 and on active duty from September 2005 to May 2009. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As will be discussed in further detail below, the Veteran, through his representative, has raised the issue of unemployability due to the Veteran’s service-connected PTSD. See 38 C.F.R. §§ 3.340, 4.16; Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran waived a hearing before the Board in his November 2016 substantive appeal, via a VA Form 9. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Effective Date An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). With respect to informal claims, the Board recognizes that this case predates the March 2015 changes to 38 C.F.R. § 3.155, and as such, the older version of the regulation applies. Under the former 38 C.F.R. § 3.155, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA may constitute an informal claim, provided that such informal claim identifies the benefit sought. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claim file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 1. An effective date earlier than April 30, 2012 for the grant of service connection for the asthma disability is denied. Turning to the evidence of record, the earliest claim for service connection for a respiratory disability, specifically asthma, was the Veteran’s VA Form 21-526, Veteran’s Application for Compensation and/or Pension, dated April 5, 2012. However, VA did not receive this form until April 30, 2012. On April 30, 2012, VA also received a letter dated April 30, 2012 from the Veteran’s representative which enclosed the Veteran’s April 5, 2012 VA Form 21-526, an April 5, 2012 VA Form 21-22, an April 5, 2012 VA Form 526b, and one of the Veteran’s DD Form 214s. VA did not receive any other documents or correspondence before April 30, 2012. The Board reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than April 30, 2012, the date of his original claim for service connection for an asthma disability was received by VA. Initially the Board notes that because the Veteran did not file a service connection claim for asthma within the one year following service discharge, the effective date cannot be the day following the date of service discharge. 38 C.F.R. § 3.400(b)(2). Next, there is no dispute that the Veteran filed his original service connection claim for asthma on April 30, 2012. Indeed, there is no correspondence received by VA prior to April 30, 2012. Thus, there is no correspondence that could be construed as an informal claim for service connection for asthma. Consequently, there is no legal basis upon which to grant an effective date prior to April 30, 2012 for the grant of service connection for asthma. The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). The claim of entitlement to an effective date earlier than April 30, 2012, for the award of service connection for asthma must be denied. Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). 2. An effective date earlier than April 30, 2012 for the grant of service connection for the PTSD disability is denied. Turning to the evidence of record, the earliest claim for service connection for a psychiatric disorder, specifically PTSD, was the Veteran’s VA Form 21-526, Veteran’s Application for Compensation and/or Pension, dated April 5, 2012. However, VA did not receive this form until April 30, 2012. On April 30, 2012, VA also received a letter dated April 30, 2012 from the Veteran’s representative which enclosed the Veteran’s April 5, 2012 VA Form 21-526, an April 5, 2012 VA Form 21-22, an April 5, 2012 VA Form 526b, and one of the Veteran’s DD Form 214s. VA did not receive any other documents or correspondence before April 30, 2012. The Board reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than April 30, 2012, the date of his original claim for service connection for PTSD was received by VA. Initially the Board notes that because the Veteran did not file a service connection claim for PTSD within the one year following service discharge, the effective date cannot be the day following the date of service discharge. 38 C.F.R. § 3.400(b)(2). Next, there is no dispute that the Veteran filed his original service connection claim for PTSD on April 30, 2012. Indeed, there is no correspondence received by VA prior to April 30, 2012. Therefore, there is no correspondence that could be construed as an informal claim for service connection for PTSD. Consequently, there is no legal basis upon which to grant an effective date prior to April 30, 2012 for the grant of service connection for PTSD. The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104 (c). The claim for entitlement to an effective date earlier than April 30, 2012 for the award of service connection for PTSD must be denied. Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). REASONS FOR REMAND 1. Entitlement to service connection for a back disability. First, VA treatment records associated with the claims file do not appear to be complete. VA treatment records dated July 2016 indicate that lumbar spine x-ray studies were ordered, but no x-ray study report is associated with the claims file. Further, the most recent VA treatment records associated with the claims file are dated July 2016, almost two and half years ago. Thus, a remand is necessary to obtain any outstanding pertinent VA treatment records. Next, the Veteran has not yet been afforded a VA examination for the low back disability. In April 2012 VA treatment records, the Veteran reported a low back injury in 2008 while serving in Iraq. Accordingly, a VA examination is necessary to determine the nature and etiology of the Veteran’s low back disability prior to further adjudication. McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to an initial rating higher than 10 percent for the service-connected asthma disability. First, as noted above, the most recent VA treatment records associated with the claims file are dated in July 2016. As the Veteran previously reported that he only received treatment at VA for his asthma disability, to include refills of his asthma medications, a remand is warranted to obtain outstanding pertinent VA treatment records. In addition, the Veteran’s asthma disability is currently rated under Diagnostic Code (DC) 6602. A higher rating of 30 percent requires an FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. The Veteran was most recently afforded pulmonary function testing (PFT) in March 2013 in conjunction with the February 2013 VA examination. Subsequently, VA treatment records dated April 2015 indicated the Veteran was experiencing a worsening of shortness of breath. As the Veteran’s most recent PFTs of record are now more than five years old, a remand is warranted to afford the Veteran additional PFTs. Furthermore, the Veteran reported to the February 2013 VA examiner that he used his asthma inhalers 7 to 10 times per day. The examiner verified with the Veteran that he did not refill his asthma medications at any other pharmacy except at VA and determined that he was over-reporting the frequency with which he was using his inhalers. Specifically, the examiner noted that if he used his inhalers 7 to 10 times per day, he would have required a refill “a long time ago.” The examiner also noted the Veteran was still using the inhalers he obtained from VA in August 2012. As a result, the examiner indicated the Veteran only used his inhaled asthma medications intermittently. However, while it is clear the examiner believed the Veteran over-reported his inhaler use at 7 to 10 times per day, it is not clear how the examiner determined that his frequency of use did or did not amount to only intermittent use (vs. daily) of his inhalers. A remand is warranted to obtain an addendum opinion to explain this conclusion. 3. Entitlement to an initial rating higher than 70 percent for the service-connected PTSD. The Veteran’s PTSD disability is currently rated at 70 percent disabling. He contends his symptoms warrant a higher rating. First, as noted above, the most recent VA treatment records associated with the claims file are dated July 2016. A remand is warranted to obtain any additional pertinent VA treatment records. Next, the Veteran’s mother has asserted that the Veteran’s PTSD symptoms have worsened since the Veteran’s most recent VA examination in November 2014. See March 2018 statement. Specifically, she asserts that the Veteran has difficulty functioning independently, experiences auditory hallucinations, must be reminded of his doctor’s appointments and to take medications, exhibits nonsensical speech during conversations, intermittently exhibits the inability to find words, has diminished speed in processing information, has difficulty processing complex instructions, and becomes overwhelmed with too much information. She noted he struggles with activities of daily living, specifically preparing meals. The fact that a VA examination is four years old is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). However, in this case, the record, to include VA treatment records and his mother’s statements, indicates that his PTSD symptoms have worsened after the most recent VA examination; therefore, a new VA examination is needed to assist in determining the current severity of the Veteran’s service-connected PTSD. Snuffer, 10 Vet. App. at 400. Finally, the Veteran submitted a May 2018 Disabilities Benefits Questionnaire (DBQ) by Dr. H.H.G., a private psychologist. The examiner indicated the Veteran’s symptoms more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, which support his current rating of 70 percent for the PTSD disability, despite the Veteran’s mother describing more severe symptoms. In addition, the May 2018 DBQ appears to be based on, in part, VA psychiatric treatment records; however, it appears that only the records currently associated with the claims file were reviewed. Thus, a remand is warranted despite the more recent private examination by Dr. H.H.G. 4. Entitlement to a total disability rating due to individual unemployability (TDIU). The Veteran’s representative raised the issue of entitlement to a TDIU in an August 2018 correspondence. However, the Veteran has not yet been afforded VCAA notice or the opportunity to provide a VA Form VA Form 21-8940 (Application for a Total Disability Rating due to Individual Unemployability). The record indicates he has been intermittently employed since 2012 with at least two different employers. Although the Veteran provided his social security earnings statement in August 2018, the statement was only current through 2016. Thus, a remand is warranted to request further information regarding the Veteran’s employment and income during the appellate period. Further, the Veteran claims he is entitled to a TDIU based solely on his PTSD disability. As the PTSD is being remanded, the TDIU also must remanded as these issues are inextricably intertwined. The matter is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Send the Veteran a VCAA notice letter informing him of what is needed to substantiate entitlement to TDIU. 3. Request that the Veteran fill out an application for entitlement to TDIU (VA Form 21-8940) to ensure that VA has all pertinent information regarding his educational background and employment history. 4. Schedule a VA examination with an appropriate clinician to determine the nature and etiology of the low back pain and muscle spasms. All necessary testing and evaluations should be afforded to the Veteran. After a thorough review of the claims file, the examiner should address the following: (a) Identify all current disabilities of the low back, whether diagnosed on examination or diagnosed during the appellate period. (b) Provide an opinion as to whether each low back disability had onset during or is otherwise related to active service. *Specifically elicit details from the Veteran about the reported accident that occurred in Iraq in 2008, to which he previously attributed the onset of his chronic low back pain. See April 2012 VA treatment records. 5. Schedule the Veteran for a VA pulmonary examination with an appropriate clinician to determine the nature and severity of the Veteran’s asthma disability. Pulmonary function testing (PFT) should be afforded to the Veteran. 6. Obtain an addendum opinion from the clinician that conducted the February 2013 VA examination. A rationale is required to support the conclusion that, despite the Veteran’s over-reporting of the frequency of inhaler use, the Veteran only used his inhalers intermittently and not daily. If the February 2013 VA examiner is no longer available, obtain an addendum opinion from an appropriate examiner. 7. Schedule the Veteran for a VA psychiatric examination with an appropriate clinician to determine the nature and severity of the Veteran’s PTSD disability. A thorough review of the claims file is required. All rating criteria should be addressed. *The examiner should also discuss the Veteran’s mother’s March 2018 letter, the medical articles provided with the May 2018 private DBQ, and the May 2018 private psychiatric examination findings. 8. Readjudicate the claims on appeal. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel