Citation Nr: 18161038 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-56 059 DATE: December 28, 2018 ORDER The claim for entitlement to an initial rating higher than 10 percent for tinnitus is dismissed. The claim for entitlement to service connection for nonservice-connected pension is dismissed. The claim for whether new and material evidence has been received to reopen a claim for service connection for basal cell carcinoma of the nose is denied. The claim for whether new and material evidence has been received to reopen a claim for service connection for dermatofibroma of the left leg is denied. The claim for entitlement to an effective date of June 21, 2007, but not earlier, for the award of service connection for ischemic heart disease is granted. The claim for entitlement to an effective date earlier than June 6, 2013 for the award of service connection for radiculopathy of the left lower extremity is denied. The claim for entitlement to an effective date earlier than June 6, 2013 for the award of service connection for radiculopathy of the right lower extremity is denied. The claim for entitlement to an effective date earlier than July 1, 2015 for the award of service connection for bilateral hearing loss is denied. The claim for entitlement to an effective date earlier than July 1, 2015 for the award of service connection for tinnitus is denied. REMANDED The claim for entitlement to an initial rating higher than 20 percent for radiculopathy of the left lower extremity is remanded. The claim for entitlement to an initial rating higher than 20 percent for radiculopathy of the right lower extremity is remanded. The claim for entitlement to an initial rating higher than 10 percent for bilateral hearing loss is remanded. The claim for entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. In August 2018, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the claims for an initial increased rating for tinnitus and nonservice-connected pension. 2. The claims for service connection for basal cell carcinoma of the nose and dermatofibroma of the left leg, to include as due to exposure to herbicide agents, were initially denied in a January 2008 final rating decision. 3. The evidence received since the January 2008 rating decision is cumulative and redundant of other evidence of record and does not raise a reasonable possibility of substantiating the claims. 4. Service connection for ischemic heart disease was granted in a March 2016 rating decision effective August 18, 2011, the date the RO determined the Veteran’s claim was received. 5. In January 2008, VA denied compensation for a disease that reasonably may be construed to include ischemic heart disease. 6. The Veteran’s claim for entitlement to service connection for a heart condition, to include ischemic heart disease, was received on June 21, 2007 and entitlement to the benefit arose on May 8, 2007. 7. The claim for entitlement to service connection for radiculopathy of the left lower extremity (claimed as peripheral neuropathy) was received on June 6, 2013. 8. The claim for entitlement to service connection for radiculopathy of the right lower extremity (claimed as peripheral neuropathy) was received on June 6, 2013. 9. The claim for entitlement to service connection for bilateral hearing loss was received on July 1, 2015. 10. The claim for entitlement to service connection for tinnitus was received on July 1, 2015. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an initial rating higher than 10 percent for tinnitus are met. 38 U.S.C. § 7105(b) (2), (d) (5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal for entitlement to nonservice-connected pension are met. 38 U.S.C. § 7105(b) (2), (d) (5); 38 C.F.R. § 20.204. 3. New and material evidence has not been received to reopen service connection for basal cell carcinoma of the nose. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has not been received to reopen service connection for dermatofibroma of the left leg. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for entitlement to an effective date of June 21, 2007, but not earlier, for the award of service connection for ischemic heart disease are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 3.816. 6. The criteria for entitlement to an effective date earlier than June 6, 2013 for the award of service connection for radiculopathy of the left lower extremity are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400. 7. The criteria for entitlement to an effective date earlier than June 6, 2013 for the award of service connection for radiculopathy of the right lower extremity are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400. 8. The criteria for entitlement to an effective date earlier than July 1, 2015 for the award of service connection for bilateral hearing loss are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400. 9. The criteria for entitlement to an effective date earlier than July 1, 2015 for the award of service connection for tinnitus are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1954 to November 1966. This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2012, March 2014, February 2016, and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2018 videoconference hearing. A transcript of the hearing is included in the claims file. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the August 2018 videoconference hearing, the Veteran withdrew the appeals for an increased initial rating for tinnitus and entitlement to nonservice-connected pension. The Veteran was informed by the presiding VLJ of the consequences of withdrawal and he and his attorney acknowledged understanding that withdrawal of the claims meant that they would no longer be on appeal. The Board therefore finds that the Veteran understood the consequences of withdrawing his claims. See Acree v. O’Rourke, No. 17-1749 (Fed. Cir. 2018) citing DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to these claims and they are dismissed. Service Connection 1. Whether new and material evidence has been received to reopen a claim for service connection for basal cell carcinoma of the nose. 2. Whether new and material evidence has been received to reopen a claim for service connection for dermatofibroma of the left leg. The Veteran first filed claims for entitlement to service connection for basal cell carcinoma of the nose and dermatofibroma of the left leg in July 2007 (claimed as cancer on the nose and melanoma on the left leg). The claims were denied in a January 2008 rating decision as the record did not establish a link between the Veteran’s claimed disabilities and active service, to include based on exposure to herbicide agents in the Republic of Vietnam. Notice of the rating decision was provided in February 2008 and the Veteran did not appeal the denial of his claims. The January 2008 rating decision is therefore final. 38 U.S.C. §§ 5108, 7103; 38 C.F.R. § 3.156. A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court of Appeals for Veterans Claims (Court) indicated that new and material evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it at least triggers the duty to assist by providing a medical opinion. The Court further held that 38 C.F.R. § 3.156 (a) “must be read as creating a low threshold,” and that “the phrase ‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening.” Shade at 117. The Court further noted that “[t]he Board’s analysis of the issue of reopening must first be confined to the subject of the existence of new and material evidence alone and must not be an outcome-based decision.” Id. at 121. The evidence received since the January 2008 rating decision includes medical records from the VA Medical Center (VAMC) and statements from the Veteran. This evidence is new as it was not of record at the time of January 2008 rating decision, but it is not material as it does not relate to an unestablished fact necessary to substantiate the claims, does not raise a reasonable possibility of establishing the claims, and in the case of the new lay statements, is cumulative and redundant of the evidence previously before the Board. The new medical records document the Veteran’s history of basal cell carcinoma of the nose and the removal of a dermatofibroma (reported as melanoma) of the left leg. The Veteran continued to receive treatment for various skin problems during the claims period, including the removal of additional basal cell carcinomas from areas other than the nose. In June 2015, a VAMC dermatologist noted an area of hyperpigmentation at the site of the Veteran’s previous left leg excision. A biopsy was performed which established scar tissue with benign epidermal pigmentation; there was no evidence of melanoma. These medical records, while showing ongoing dermatological treatment, do not contain any evidence of a link between the Veteran’s claimed conditions and active duty service, to include exposure to herbicide agents. They also do not establish the presence of any conditions subject to presumptive service connection as diseases associated with exposure to certain herbicide agents, such as soft-tissue sarcomas. The Veteran’s new lay statements are also duplicative of evidence already of record in January 2008. The Veteran has maintained that service connection is warranted for his claimed skin disabilities as they were incurred due to exposure to herbicide agents during active service. The Veteran reiterated this contention in the May 2016 notice of disagreement and during the August 2018 hearing. These more recent statements are therefore redundant of the Veteran’s contentions at the time of the January 2008 rating decision. The Board has carefully and specifically considered the Court’s decision in Shade, but none of the evidence added to the record raises a reasonable possibility of substantiating the claims or would at least trigger the VA’s duty to assist by providing a medical opinion. The competent evidence does not indicate that the Veteran’s claimed skin conditions are etiologically related to active service, to include exposure to herbicide agents on a direct or presumptive basis. The Veteran’s statements are also redundant of evidence previously of record. Thus, the Board finds that new and material evidence has not been submitted to allow for reopening of the claims. Effective Date In general, the effective date of an award of disability compensation in conjunction with a grant of entitlement to service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). 3. Entitlement to an effective date earlier than August 18, 2011 for the award of service connection for ischemic heart disease. Service connection for ischemic heart disease was awarded in the March 2016 rating decision on appeal. An initial 100 percent evaluation was assigned effective from August 18, 2011, the date the RO determined the Veteran’s claim was received. The Veteran contends that an effective date earlier than August 18, 2011 is warranted as his heart disability has been present since at least 2007. In this case, the March 2016 award of service connection for ischemic heart disease was based on a liberalizing law pertaining to diseases associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e) (listing ischemic heart disease as a disease that shall be service-connected even though there is no record of such disease during service for certain veterans, including those who were exposed to herbicide agents during service in the Republic of Vietnam). Ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents effective August 31, 2010. See 75 Fed. Reg. 53202 (Aug. 31, 2010). Effective dates of certain awards of service connection are governed pursuant to the orders of a United States district court in the class-action case. Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991); 38 C.F.R. § 3.816. The covered diseases are listed in 38 C.F.R. § 3.816(b)(2) and are any “disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991…other than chloracne.” Ischemic heart disease is included in the diseases covered by 38 C.F.R. § 3.816 and the final rule made clear that the effective dates of awards of ischemic heart disease under 38 C.F.R. § 3.309(e) are governed by the Nehmer provisions. See 75 Fed. Reg. at 53203. Where a Nehmer class member is entitled to disability compensation for a covered herbicide disease, and the claim was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section, which pertains to claims filed within one year from the date of separation from service. See 38 C.F.R. § 3.816(c)(2). As noted above, ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e) effective August 31, 2010. A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) the claimant’s application and other supporting statements and submission may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Id. Thus, under the Nehmer effective date provisions, an earlier effective date is possible in this case if VA denied a claim for ischemic heart disease between May 3, 1989 and August 31, 2010, the effective date of the relevant liberalizing law. The Board finds that an earlier effective date is warranted in this case as VA denied a claim for a disability that could reasonably be construed as ischemic heart disease during the period between May 3, 1989 and August 31, 2010. The Veteran filed a claim for entitlement to service connection for a “heart condition with a pacemaker “in July 2007. In a January 2008 rating decision, the RO denied the claim, characterizing it as “recurrent atrial fibrillation and atrial flutter, s/p radiofrequency ablation (claimed as heart condition with pacemaker due to Agent Orange exposure).” The Veteran appealed the denial of his claim and a statement of the case (SOC) was issued in January 2009. Substantive appeals were received in August 2009 and February 2010, but were untimely and did not serve to perfect the appeal. Thus, the January 2008 denial of the claim for service connection for a heart condition became final. Although the RO did not specifically characterize the Veteran’s July 2007 claim to include ischemic heart disease, the Board finds that the denial of service connection in January 2008 “reasonably may be construed” to include a denial of ischemic heart disease. See 38 C.F.R. § 3.816(c)(2)(ii). The July 2007 claim for service connection was broadly characterized by the Veteran as a “heart condition with pacemaker.” Private medical evidence submitted along with the claim establish that the Veteran underwent a cardiac catherization in May 2007 that confirmed the presence of coronary artery disease, i.e. ischemic heart disease. In Clemons v. Shinseki, the Court held that the scope of a claim is determined based the claimant's description of the claim; the symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, the Veteran’s July 2007 claim included consideration of the specific diagnosis of ischemic heart disease and the January 2008 rating decision constitutes a denial of compensation for a condition that “reasonably may be construed” as ischemic heart disease. The Veteran therefore satisfies the definition of a claim for compensation set forth in 38 C.F.R. § 3.816(c)(2)(ii) and his claim is deemed received by VA on June 21, 2007. In such cases, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. See 38 C.F.R. § 3.816(c)(2). The Veteran’s claim for service connection was received on June 21, 2007, but entitlement to the benefit arose slightly earlier, on May 8, 2007, the date a private cardiac catheterization report documented the presence of diffuse coronary atherosclerosis, a type of ischemic heart disease. As the date of claim is the later of the two dates, the proper effective date for the award of service connection is June 21, 2007, the date the initial claim for a heart condition was received by VA. The claim for an earlier effective date is granted and service connection for ischemic heart disease is effective June 21, 2007. 4. Entitlement to an effective date earlier than June 6, 2013 for the award of service connection for radiculopathy of the left lower extremity. 5. Entitlement to an effective date earlier than June 6, 2013 for the award of service connection for radiculopathy of the right lower extremity. Service connection for radiculopathy of the left and right lower extremities was granted in the March 2016 rating decision on appeal effective June 6, 2013. Service connection was granted as the radiculopathy was incurred directly due to service; the evidence established that the Veteran’s radiculopathy is a chronic progression of leg weakness complaints made during service. The appellant contends that an earlier effective date is warranted for the award of service connection for radiculopathy as he manifested symptoms of the disease prior to June 2013. The Veteran’s claim for entitlement to service connection for a neurological disability characterized as peripheral neuropathy was received by VA on June 6, 2013. The RO interpreted the Veteran’s claim as pertaining to neurological impairment of the bilateral upper and lower extremities. The claim for neurological impairment of lower extremities was eventually granted in the March 2016 rating decision on appeal, characterized as a radiculopathy of the left and right lower extremities, and made effective from June 6, 2013—the date of receipt of the initial claim. The record does not contain any earlier communications from the Veteran indicating an intent to claim service-connected compensation benefits for peripheral neuropathy and/or neurological impairment of the lower extremities. The claims file contains VA medical records documenting treatment for neurological impairment of the legs prior to June 2013, beginning in August 2011 when the Veteran told his cardiologist he experienced tingling and numbness in his legs. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Similarly, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). Therefore, any treatment records dated before June 2013 cannot serve as the basis for an earlier effective date for the award of service connection. The applicable regulation in this case is clear—the effective date of an original award of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In May 2015 a VA examiner provided a medical opinion in support of a link between the Veteran’s diagnosed radiculopathy and complaints during active duty service. This medical opinion represents the first competent evidence of a link between the Veteran’s current disability and an incident of active duty service. The correct effective date for the award of service connection is therefore June 6, 2013, the date of claim. There is no legal basis for an earlier effective date. The claims must be denied. 6. Entitlement to an effective date earlier than July 1, 2015 for the award of service connection for bilateral hearing loss. 7. Entitlement to an effective date earlier than July 1, 2015 for the award of service connection for tinnitus. Service connection for bilateral hearing loss and tinnitus was granted in the February 2016 rating decision on appeal effective July 1, 2015. Service connection was granted as the Veteran’s hearing loss was incurred due to noise exposure and hearing loss during service. Tinnitus was awarded as secondary to hearing loss. The appellant contends that earlier effective dates are warranted for the award of service connection for bilateral hearing loss and tinnitus. The Veteran’s claim for entitlement to service connection for bilateral hearing loss was received by VA on July 1, 2015. The RO interpreted the Veteran’s claim as including tinnitus. The claims were granted in the February 2016 rating decision on appeal, with separate 10 percent evaluations assigned effective July 1, 2015—the date of receipt of the claims. The record does not contain any earlier communications from the Veteran indicating an intent to claim service-connected compensation benefits for hearing loss and/or tinnitus. The claims file again contains VA medical records documenting treatment and complaints of hearing loss prior to July 2015. During a May 2013 VAMC audiology consultation, the Veteran reported noticing a decrease in his hearing acuity over the past five years. At that time, he was diagnosed with bilateral mild sloping to severe sensorineural hearing loss. As noted above, the mere presence of medical evidence does not establish an intent on the part of the Veteran to apply for service-connected compensation. See Brannon at 35 (1998). Therefore, any treatment records dated before July 2015 do not serve as the basis for an earlier effective date for the award of service connection. The applicable regulation in this case is clear—the effective date of an original award of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In October 2015 a VA examiner provided a medical opinion linking the Veteran’s bilateral hearing loss to hearing changes during service. The VA examiner also provided a medical opinion in support of service connection for tinnitus as secondary to hearing loss. These medical opinions represent the first competent evidence of a link between the Veteran’s hearing loss and service and a link between the hearing loss and tinnitus. The correct effective date for the award of service connection is therefore July 1, 2015, the date of claim. There is no legal basis for an earlier effective date. The claims must be denied. REASONS FOR REMAND The Board regrets further delay in this case, but finds that a remand is necessary with respect to the remaining claims on appeal. Specifically, VA examinations are necessary to determine the nature and etiology of the claimed psychiatric disorder and to clarify the effects of the service-connected bilateral hearing loss and bilateral lower extremity radiculopathy. The Veteran’s VAMC audiograms must also be obtained and added to the claims file. The matters are REMANDED for the following action: 1. Obtain the VAMC audiogram reports from September 15, 2015 and February 28, 2018 if available from VA’s document scanning system. 2. Schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral hearing loss. The claims file must be made available to and reviewed by the examiner. The evaluation should be in accordance with the criteria delineated in 38 C.F.R. § 4.85 and should include testing of pure tone criteria at 1,000, 2,000, 3,000, and 4,000 Hertz and speech recognition scores using the Maryland CNC Test. The objective findings and the Veteran’s subjective complaints should be recorded in detail. The VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. The audiologist must also determine whether it is at least as likely as not that the Veteran’s reported headaches and balance problems are caused or aggravated by service-connected hearing loss. VAMC treatment records document a diagnosis of benign paroxysmal positional vertigo (BPPV), headaches associated with vascular deficiencies in the brain, and medication use. 3. Schedule the Veteran for a VA examination to determine the current severity of the service-connected bilateral radiculopathy. The claims file must be made available to and reviewed by the examiner. The examiner must identify the manifestations of the service-connected radiculopathy of the lower extremities. Any sensory or motor impairment in the extremities due to service-connected disability should be identified. The examiner should provide an opinion with respect to any symptoms due to nerve root impingement as to whether they are mild, moderate, moderately severe, or severe. The examiner must also identify the specific nerves affected only by the service-connected radiculopathy. The Veteran is diagnosed with two separate neurological conditions affecting the lower extremities: service-connected radiculopathy and nonservice-connected idiopathic polyneuropathy. The May 2015 VA examiner found that the service-connected radiculopathy only caused impairment to the bilateral sciatic nerves. However, the July 2018 VA examiner appears to have found that all the Veteran’s lower extremity nerves are impacted by the service-connected radiculopathy. The RO identified the need for clarification on this point in an August 2018 memorandum, but it does not appear that clarification was ever obtained. The VA examiner must identify which nerves of the lower extremities are affected by the service-connected radiculopathy alone. The complete bases for all medical opinions must be provided. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently present acquired psychiatric disorder. The examiner must opine whether any identified psychiatric disorders are at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reports of stressful events during his service in the Republic of Vietnam. The examiner should also determine whether any currently present acquired psychiatric disorder is caused or aggravated by the Veteran’s service-connected disabilities. The Veteran testified during the August 2018 hearing that he experiences symptoms of frustration and   depression related to the loss of independence and function associated with his service-connected heart, radiculopathy, and hearing loss conditions. M. H. Hawley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Riley, Counsel