Citation Nr: 18161267 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 16-10 971 DATE: December 31, 2018 ORDER An effective date prior to March 27, 2015, for the award of service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to service connection for a peripheral vestibular disorder (claimed as vertigo) is remanded. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), asthma, and bronchitis, is remanded. Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded.   FINDINGS OF FACT In an October 2015 rating decision, service connection for bilateral hearing loss was granted, effective March 27, 2015, the date VA received the Veteran’s original claim. CONCLUSION OF LAW The criteria for an effective date prior to March 27, 2015, for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1958 to October 1962. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions issued in February 2013, October 2015, and May 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the Veteran’s claim for service connection for a respiratory disorder, the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In this case, while the Veteran’s service connection claim on appeal was previously characterized as a claim for service connection for COPD, in light of Brokowski and the medical findings of record, the Board has recharacterized the issue as a claim for entitlement to service connection for a respiratory disorder, to include COPD and asthma. The Board observes that, following the January and November 2016, and July 2018 supplemental statements of the case, additional evidence was associated with the record. However, in August and November 2018, the Veteran’s representative waived Agency of Original Jurisdiction (AOJ) consideration of all evidence of record. 38 CF.R. § 20.1304(c) (2017). Therefore, the Board may properly consider the newly received evidence. 1. Entitlement to an earlier effective date prior to March 27, 2015, for the award of service connection for bilateral hearing loss. The Veteran contends that he is entitled to an effective date prior to March 27, 2015, for the grant of service connection for bilateral hearing loss. A. Applicable Law By way of background, in March 2015, the Veteran filed his original claim for service connection for bilateral hearing loss. In a rating decision dated and issued in October 2015, the AOJ considered the Veteran’s service and VA treatment records, an August 2015 VA examination report, and lay statements from the Veteran. Based primarily on the August 2015 VA examiner’s opinion that the Veteran’s bilateral hearing loss was due to his military noise exposure, in the October 2015 rating decision, the AOJ granted service connection for bilateral hearing loss with a noncompensable rating, effective March 27, 2015, the date VA received the Veteran’s original claim. The Veteran subsequently perfected an appeal as to the propriety of the assigned effective date for such award. Except as otherwise provided, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). 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. 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. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. 38 C.F.R. § 3.155. B. Discussion The Veteran initially filed a claim for service connection for bilateral hearing loss in March 2015. Thereafter, an October 2015 rating decision granted service connection for bilateral hearing loss with a noncompensable rating, effective March 27, 2015, the date VA received the Veteran’s original claim. The Board finds that there is no document of record that can be construed as an informal or formal claim for service connection for the Veteran’s bilateral hearing loss that was received prior to the March 27, 2015, formal claim. While the Veteran alleges that he sought medical attention for his bilateral hearing loss at the Nashville, Tennessee, VA Medical Center (VAMC) prior to March 27, 2015, and such VA treatment records in fact document treatment for and diagnosis of bilateral hearing loss prior to March 27, 2015, the Veteran did not file a claim for service connection for such disorder prior to that date. In this regard, VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established and the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disorder. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established); see Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as an informal claim). In short, merely seeking treatment does not establish a claim, to include an informal claim, for service connection and an effective date prior to March 27, 2015, cannot be established by the sheer presence of a disability in treatment records. Based on the laws and regulations previously cited, and after reviewing the totality of the evidence, the Board finds that an effective date prior to March 27, 2015, for the award of service connection for bilateral hearing loss is not warranted. Here, VA received the Veteran’s original claim for service connection for bilateral hearing loss on March 27, 2015, and he has been afforded the earliest possible effective date under the law. As noted above, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde, 12 Vet. App. at 382-383. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this regard, the record clearly shows that the earliest document that can be construed as a claim for compensation, whether formal or informal, was received on March 27, 2015, when the Veteran filed an original claim for bilateral hearing loss. Here, based on the above regulations, the effective date has been appropriately assigned as the date of the receipt of the claim. Accordingly, the preponderance of the evidence is against the assignment of an effective date prior to March 27, 2015, for the award of service connection for bilateral hearing loss. As such, the benefit-of-the-doubt doctrine does not apply and the appeal of this issue must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral eye disorder. The Veteran contends that his current bilateral eye disorder is related to events that occurred during his military service. Specifically, in a February 2011 written correspondence, he reported that, in June 1959 while stationed at the Eielson Air Force Base in Alaska, he was sent to assist in a nearby forest fire. Here, he indicated that he was given a back tank with a spray hose, and was told to spray the brush to help stop the fire; and that while spraying, the hose became clogged. He further indicated that while attempting to unclog the hose, he sprayed himself in the eyes and face with the chemical that was being used. The Veteran further reported that, immediately following the incident, his eyes were flushed out; however, his vision was blurred for weeks and eventually cleared up. Additionally, the Veteran indicated that in approximately 1959/1960, when the entire base was on lockdown, he was sent to the flight runway to help refuel the jet aircraft. Here, he explained that, when he attempted to unhook the fuel tank cover, the pressure from the tank sprayed his eyes and face with jet fuel. He further explained that, immediately following the incident, his eyes were flushed out; however, over the next year his vision became increasingly worse. The Veteran noted that, in April 1961, as his vision was causing him problems, he went to the doctor and was given eye drops and glasses. He further noted that, since such time, he has had to wear glasses; that his vision problems continued following his discharge from service; that since his discharge from service, he underwent several procedures with respect to his eyes; that in 1994, he suffered an optic atrophy attack which left him blind in his left eye; that in 2006, he suffered an additional optic atrophy attack which caused him to become legally blind; and that prior to his enlistment, his vision was perfect. Therefore, he claims that service connection for a bilateral eyes disorder is warranted. The Veteran’s service treatment records (STRs) reflect the Veteran’s complaint of very tired eyes which caused headaches in January 1960. The Veteran’s post-service private treatment records reflect a letter written by Dr. L.P. in September 2010. Such record further reflects Dr. L.P.’s report that, on his August 2010 evaluation, the Veteran’s best corrected visual acuity measured 20/40+2 in the right eye with light perception only in the left eye. He further reported that, due to the Veteran’s optic atrophy, a disorder that caused damage to the optic nerve, he had severe constriction in his peripheral vision on his right side and total constriction on the left side; and that due to such eye disorder, the Veteran was considered legally blind. An accompanying examination report dated in August 2010 includes diagnoses of optic atrophy and dry eyes. His post-service VA treatment records reflect an assessment of right eye ischemic optic neuropathy and left eye legal blindness in November 2008. An April 2010 VA treatment record indicates the Veteran’s dry eyes as a disorder that may cause vision fluctuations. A January 2011 VA treatment record notes an assessment of blindness. A December 2013 VA treatment record reveals an assessment of astigmatism and presbyopia. In the instant case, the Board finds that, in light of the Veteran’s private and VA treatment records showing current diagnoses of a bilateral eye disorder; lay statements from the Veteran regarding in-service events; confirmation of the Veteran’s bilateral eye complaint in his STRs; and the Veteran’s report of a continuity of eye symptomatology, a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his bilateral eye disorder. 2. Entitlement to service connection for a peripheral vestibular disorder (claimed as vertigo), to include as secondary to service-connected bilateral hearing loss and/or tinnitus. The Veteran seeks service connection for a peripheral vestibular disorder (claimed as vertigo). As relevant, the Veteran has raised a new theory of entitlement, through his representative’s November 2018 Argument in Support of Appeal, that has not yet been considered. Specifically, the Veteran’s representative raised the alternative theory that the Veteran’s peripheral vestibular disorder was caused or aggravated by his service-connected bilateral hearing loss and/or tinnitus. In this regard, the Veteran’s representative submitted internet articles written by the Vestibular Disorders Association reflecting a positive relationship between hearing loss/tinnitus and the vestibular system. Here, the Board notes that such article excerpts are general in nature and do not specifically provide an opinion regarding the Veteran’s peripheral vestibular disorder by a competent medical professional. See Sacks v. West, 11 Vet. App. 314, 317 (1998). Therefore, the information submitted is inadequate to decide the claim. While in March 2017, a VA examiner adequately addressed whether the Veteran’s diagnosed peripheral vestibular disorder was directly related to his military service, to date, no opinion has been obtained regarding service connection for such disorder on a secondary basis. Given that the Veteran has a current diagnosis of a peripheral vestibular disorder, as indicated in the March 2017 VA examination report, and medical evidence suggests a positive relationship between hearing loss/tinnitus and the vestibular system, the Board finds that a remand is necessary in order to obtain a VA opinion addressing entitlement to service connection on a secondary basis. 3. Entitlement to service connection for a respiratory disorder, to include COPD, asthma, and bronchitis. The Veteran contends that he currently has a respiratory disorder that had its onset during his military service. Specifically, in a February 2011 written correspondence, the Veteran reported that in January 1961, he was hospitalized for acute bronchitis. He further reported that, following his hospital stay, he was given medication to help his breathing and was required to use sprays to open his bronchial tubes. The Veteran indicated that he continued to have breathing problems for the remainder of his service; and that upon his discharge from service, he continued to seek treatment for such. He further indicated that, prior to entering his military service, he did not experience breathing problems; and that he was recently diagnosed with COPD. Therefore, he claims that service connection for a respiratory disorder is warranted. The Veteran’s service treatment records (STRs) include a diagnosis of acute bronchitis in January 1961. An additional January 1961 STR indicates the Veteran’s complaint of experiencing a persistent cold. Such record further indicates an impression of bronchitis. An October 1961 STR reveals an impression of mild asthma with bronchitis. Such record further reveals that the Veteran was given medication for his asthma. STRs dated in January 1962 report that the Veteran’s asthma medication was refilled. A February 1962 STR notes that the Veteran received treatment for asthmatic bronchitis. The Veteran’s post-service treatment records indicate an assessment of probable bronchitis related to smoking in June 2014. A January 2003 private treatment record notes that the Veteran underwent a chest CT due to his clinical history of bronchitis, dyspnea, and cold congestion. Such record further notes an impression of interstitial prominence in the lungs which could be seen with interstitial lung disease, chronic bronchitis, or other less common etiologies. An October 2009 private treatment record reports a diagnosis of acute bronchitis. A November 2009 private treatment record indicates an impression of COPD/bronchitis. Furthermore, VA treatment records dated throughout the entire appeal period reveal assessments/diagnoses of COPD. The Veteran underwent a VA examination in May 2011. At such time, the Veteran reported that he had asthma his entire life; that he experienced an asthmatic attack approximately twice per year, usually in the wintertime; that he used asthmatic medications intermittently (usually about twice per year) for his entire life; that he was not currently using an inhaler; and that, while in service, he had an asthmatic episode that required hospitalization. He further reported that he was diagnosed with COPD in 2000; that he had a daily productive cough with clear sputum production; that he experienced shortness of breath when climbing the stairs; and that intermittently, his dyspnea was limiting. Following examination, the examiner noted an assessment of asthma and COPD. In this regard, the examiner opined that it was less likely than not that the Veteran’s COPD was the same disorder as the asthma/asthmatic bronchitis for which he was treated in service. As rationale for the opinion, the examiner indicated that the Veteran reported that he quit smoking approximately a year prior; and that prior to quitting, he had a 25-30 pack-year history, as well as significant secondhand exposure. The examiner further indicated that overlap may exist between the Veteran’s COPD and asthma as asthma was usually considered to be an inflammatory disease that may be triggered by contact with substances that trigger allergies; and individuals with asthma were more likely to have episodic chest symptoms. Additionally, the examiner noted that individuals with COPD had evidence of permanent damage with destruction and plugging of the airways, and were more likely to have a daily cough with mucus production and persistent chest symptoms throughout the day. The examiner further noted that the Veteran’s symptoms include a daily cough with sputum production and shortness of breath; and that the Veteran’s asthma had manifested with intermittent symptoms requiring intermittent treatment. The VA examiner ultimately concluded that a more likely etiology of the Veteran’s COPD was his long history of primary and secondary cigarette exposure. However, the May 2011 VA examiner failed to provide an etiological opinion with respect to the Veteran’s asthma diagnosis; and did not consider the Veteran’s previous diagnoses of bronchitis. In this regard, the Board notes that the record suggests that the Veteran may have had a respiratory disorder prior to entering service. When an issue is raised as to whether the disorder claimed by the Veteran pre-existed service, the governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). This statutory provision is referred to as the “presumption of soundness.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In the instant case, the Veteran was not noted to have a respiratory disorder during his August 1958 entrance examination. Consequently, the presumption of soundness attaches and a remand is necessary in order to obtain an addendum opinion that addresses whether the evidence clearly and unmistakably shows that the Veteran’s respiratory disorder (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. 4. Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded. This issue is remanded to obtain missing information. Specifically, the Veteran underwent a VA Audiology evaluation in October 2016. According to the treatment report, an audiogram was conducted. But, the results of that audiogram have not been associated with the claims file. The treatment report states to: “See Audiogram Display under Audiology in the Tools section of CPRS for test results.” This was not done. As such, remand is needed to obtain the audiogram report. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records, including all audiogram reports. 2. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any bilateral eye disorder. The examiner is asked to address each of the following: (a.) Does the Veteran have a current eye diagnosis? The examiner must provide a diagnosis for any conditions found extent. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. (b.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease. The examiner should take into consideration all of the evidence of record, to include the January 1960 STR reflecting the Veteran’s complaint of very tired eyes, post-service treatment records, and lay statements from the Veteran concerning his in-service injuries, as well as his post-service symptomatology, accepted medical principles, and objective medical findings. 3. Return the record to the VA examiner who conducted the Veteran’s March 2017 ear conditions examination. The record, to include a copy of this Remand, should be made available to, and be reviewed by, the examiner. If the March 2017 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The electronic record, to include a copy of this Remand, should be forwarded for review by the examiner. Based on a review of the relevant evidence contained therein, the examiner should specifically offer an opinion to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s peripheral vestibular disorder caused or aggravated by his service-connected bilateral hearing loss and/or tinnitus. In this regard, the examiner should consider the internet articles written by the Vestibular Disorders Association submitted in November 2018 reflecting a positive relationship between hearing loss/tinnitus and the vestibular system. 4. Return the record to the VA examiner who conducted the Veteran’s May 2011 respiratory examination. The record, to include a copy of this Remand, should be made available to, and be reviewed by, the examiner. If the May 2011 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. For each diagnosed respiratory condition, the examiner must address the following: (a.) Whether the current condition clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel