Citation Nr: 1807438 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-07 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a heart disability, to include ischemic heart disease (IHD) associated with herbicide exposure. 2. Entitlement to an effective date earlier than February 1, 2012, for service connection for migraine headaches. 3. Entitlement to an effective date prior to February 3, 2014, for increase evaluation of posttraumatic stress disorder (PTSD) with major depressive disorder. 4. Entitlement to a compensable rating for a bilateral hearing loss disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in July 2017. The Veteran was not represented at the hearing. A transcript of the hearing is of record. The record reflects a request from the Veteran, received in October 2011, to expedite his claim due to financial hardship. However, this request was not raised at the July 2017 hearing. As it was not addressed at the hearing, the Board assumes that the financial issues that gave rise to the request have resolved. In addition, at the hearing, the Veteran indicated that he would like to seek service connection for chronic obstructive pulmonary disease (COPD). The Board has reviewed the file and it appears that the RO is developing this issue. See VA correspondence January 2018. Therefore, there is no need for the Board to refer the matter. The Board notes that the Veteran filed for service connection for IHD in November 2010. However, at the July 2017 hearing the Veteran indicated that he has a heart condition that requires a pacemaker, but that he has not been diagnosed with IHD. According to the United States Court of Appeals for Veterans Claims (the Court), when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). Based on the Veteran's statements at the hearing, and conscious of the fact that the Veteran is not represented, the Board will recharacterize the Veteran's claim pursuant to Clemmons, as one for entitlement to service connection for a heart disability, to include IHD associated with herbicide exposure. This issue so characterized is reflected on the title page. In addition, the Board notes that the RO denied the Veteran's claim for service connection for heart problems in a May 2009 rating decision. In September 2014, VA received additional service treatment records which had not been considered at the time of the May 2009 rating decision. Specifically, the Board points to an August 1967 report of medical history in which the Veteran indicates that he experiences palpitation or pounding heart. Thus, the service treatment records are relevant to the Veteran's claim. Pursuant to 38 C.F.R. § 3.156 (c)(1), if, at any time after VA issues a decision on a claim, VA receives or associates with the claim file relevant official service department records that existed and had not been associated with the file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156 (c)(1). As the service treatment records were not associated with the claim file and are relevant to the Veteran's claim, the previously denied claim must be reconsidered, not reopened. 38 C.F.R. § 3.156 (c). Finally, the Board notes that treatment records were added to the record that have not been first considered by the AOJ. While the Veteran has not submitted a waiver of AOJ consideration, the Board finds that these records are not relevant to the earlier effective date issues on appeal. Consequently, the Board may proceed with adjudication of these issues without seeking a Supplemental Statement of the Case (SSOC). 38 C.F.R. §19.37. The issues of (1) entitlement to service connection for a heart disability, to include IHD associated with herbicide exposure, and (2) entitlement to a compensable rating for a bilateral hearing loss disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a May 2009 rating decision, the RO denied service connection for headaches. The Veteran was notified of that decision and of his appellate rights, but he did not appeal. He also did not submit new and material evidence within one year of that decision. 2. The Veteran filed a request to reopen the previously denied claim for service connection for headaches which was received on February 1, 2012. 3. Service connection for headaches was granted in an April 2013 rating decision with an effective date of February 1, 2012. 4. Between May 2009, the date of the prior final rating decision, and February 1, 2012, the record does not contain a formal or informal claim, or any communication which can be construed as an intent to file a claim for service connection for headaches. 5. The Veteran's PTSD with major depressive disorder has manifested as near complete social isolation with persistent delusions or hallucinations, impairing both occupational and social functioning; as well as serious suicidal ideation that has manifested in concrete action, difficulty performing activities of daily living, such as keeping his home clean, and memory loss since February 3, 2013. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 1, 2012, for the grant of service connection for migraine headaches have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for a 100 percent rating for PTSD with depression are met effective from February 3, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.125-4.130, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 With respect to the issues herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria and Analysis I. Earlier Effective Date - Service Connection for Migraine Headaches In this case, the Veteran has asserted that he is entitled to an effective date earlier than February 1, 2012, for the grant of service connection for migraine headaches. As explained further below, the Board finds that an earlier effective date is not warranted. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, 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. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110 (a). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400 (q)(2), 3.400(r). The effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C.A. § 5110 (a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did 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. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400 (q), means a claim to reopen a previously and finally decided claim. In order for a veteran to be awarded an effective date based on an earlier claim, he or she has to show clear and unmistakable error (CUE) in the prior denial of the claim. 38 C.F.R. §§ 3.104 (b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). However, in this case, the issue of CUE in a specific, prior RO decision has not been raised by the Veteran and, therefore, it is not before the Board at this time. In addition, another exception applies when evidence, other than service treatment records, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection. In that situation, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400 (q)(1). However, this provision is not applicable to this case, as there was no additional evidence received within one year of the prior disallowance. Generally, 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. See 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 the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. An informal claim must identify the benefit sought. Upon receipt of an informal claim, if a 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 receipt of the informal claim. See 38 C.F.R. § 3.155 (a). When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155 (c). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). In this case, the Veteran initially submitted a claim for service connection for headaches in June 2008. The RO denied service connection for headaches in a May 2009 rating decision, finding that the evidence did not show that headaches are related to service-connected PTSD, nor was there any evidence of this disability during military service. The Veteran was provided notice of the May 2009 rating decision and his appellate rights, but he did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the May 2009 decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. Thereafter, the Veteran submitted a new claim for service connection for migraine headaches, which was granted by the RO in an April 2013 rating decision awarding a 30 percent evaluation, effective February 1, 2012. This was increased to 50 percent in a November 2016 rating decision, effective February 1, 2012. The Veteran appeals the February 1, 2012 effective date. The Board has thoroughly reviewed the evidence of record between May 2009 and February 1, 2012, to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for service connection for headaches/migraines during that time. However, there is nothing in the record to support such a finding. The Board acknowledges that there are VA medical records dated prior to February 1, 2012, documenting that the Veteran uses ibuprofen to treat his headaches. See e.g. VA treatment records, November 2009 and November 2010. However, to the extent that the Veteran may have sought medical treatment for a headaches/migraines prior to February 1, 2012, the Board notes that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Based on the foregoing, the Board finds that, following the final May 2009 rating decision, VA did not receive a formal or informal claim for service connection for headaches/migraines before February 1, 2012. As previously noted, an effective date is assigned based on the date of the claim or the date entitlement arose, whichever is later. In the present case, the date the claim was received, February 1, 2012, is later. Accordingly, the Board concludes that February 1, 2012, is the proper effective date for the award of service connection for migraine headaches. 38 U.S.C. § 5107 (b). II. Earlier Effective Date - Increased Rating for PTSD The Veteran's PTSD is rated as 70 percent disabling effective from December 30, 1992, and 100 percent effective from February 3, 2014. However, in his July 2014 notice of disagreement, the Veteran contested the February 3, 2014 effective date of his 100 percent award, stating that his PTSD and related problems were incurred while in service and that the effective date should be the day after discharge. The effective date of an increased rating is the date of receipt of the claim or the date entitlement arose, whichever is later, unless it is factually ascertainable that the increase occurred within the year prior to the receipt of the claim. 38 C.F.R. § 3.400 (o). Therefore, although the Veteran asserts that he is entitled to a 100 percent higher rating dating back to service, his claim for increase was received in February 3, 2014, and the relevant time frame for review starts one year prior to this date. 38 C.F.R. § 3.400 (o). Thus, the Board must determine whether it is factually ascertainable that the Veteran met the criteria for an 100 percent disability award one year prior to February 3, 2014. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned, if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The criteria for evaluating PTSD, and all acquired psychiatric disabilities, are found at 38 C.F.R. § 4.130 , DC 9411. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126 (a). After review of the evidence, the Board finds that a 100 percent rating is warranted, effective from February 4, 2013 as it is factually ascertainable that PTSD had increased in severity a year prior to the filing of the claim on February 4, 2014. According to a March 2013 VA examination, the Veteran described suicidal ideation that included contemplating different methods and strategies for killing himself and plans to hang himself because it would leave the least amount of mess. In connection with these suicidal plans, the Veteran described giving away clothing and personal items, organizing his personal files, and visiting a funeral home to purchase a prepaid funeral. At the examination, the Veteran indicated that he had been unemployed since 1995 and that he usually remains at home alone, not liking to interact with the outside world and that his home is messy with unopened mail and paper "all over." The examiner noted that the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner noted near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; mild memory loss, such as forgetting names, directions or recent events; suicidal ideation; and neglect of personal appearance and hygiene, among other symptoms. A VA treatment record from April 2013 states that the Veteran has a chronic delusion of a worm being implanted in his head and the feds experimenting on him. He has had paranoid ideations about people he worked with at multiple jobs in the past, to the point that he quit jobs. He hears muffled voices that sound as if they are in the room with him, but he cannot make out what they say. He thinks this is part of an experiment the government is doing about Alzheimer's and may be related to the worm that was implanted in his head. He described getting cryptograms from the television accusing him of being a baby killer, so he got rid of his television. A January 2014 VA treatment record states that the Veteran was having difficulty with housecleaning and paying bills, and thinks that he might need a fiduciary. He also described two doves he sees every day in a tree and believes they are monitoring him to see if he includes everyone he should in his noon prayers. He believes he will get a signal from God when it is time to hang himself. The Board finds that these symptoms more nearly approximate a 100 percent disability rating under the rating criteria. The record suggests near complete social isolation with persistent delusions or hallucinations, impairing both occupational and social functioning. In addition, the Veteran has demonstrated serious suicidal ideation that has manifested in concrete action, difficulty performing activities of daily living, such as keeping his home clean, as well as memory loss. Given the evidence of record, the Board finds that for the year prior to February 2014, the Veteran is entitled to 100 disability rating for his service-connected PTSD. As such, an effective date of February 3, 2013 is warranted. Again, the Board acknowledges the Veteran's arguments that he has been at this level of disability for longer than the period on appeal. However, his claim was not received until February 3, 2014. As previously noted, under applicable regulation, the effective date can only be as early as a year prior to the date of the filing of the claim, if it is factually ascertainable that his disability had increased in severity as of then. See 38 C.F.R. § 3.400 (o). That is what the Board has done in the instant decision. To the extent that the Veteran is basing his argument on the concept of equity, the Board is unfortunately bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104(c); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to an effective date prior to February 1, 2012, for the grant of service connection for migraine headaches is denied. A 100 percent rating for PTSD is granted effective from February 3, 2013. REMAND The Board finds that additional development is needed prior to adjudication of the remaining issues on appeal, entitlement to service connection for a heart disability and entitlement to an increased disability rating for bilateral hearing loss disability. First, the Board finds that a new examination is needed regarding the Veteran's claimed heart disability. At the July 2017 hearing, the Veteran testified that he has a defibrillator that is monitored and reviewed every three to four months by a cardiologist and identified prior diagnoses of arrhythmia and tachycardia. In addition, service treatment records now associated with the claim file, indicate that the Veteran had palpitation or pounding heart upon entering service. The Board will remand to afford the Veteran a new examination and to obtain an opinion addressing his diagnoses and reported symptoms upon entry to service. At the July 2017 hearing, the Veteran testified that his bilateral hearing loss disability has worsened since his most recent VA examination of February 2014. The Veteran testified that he has been given hearing aids, but they do not help and he requested that he be retested. The Veteran is competent to describe his symptoms and their effect on daily activities. Under these circumstances, VA cannot rate the service-connected disability without further medical clarification. Hence, the Veteran is entitled to a new VA examination. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Accordingly, the appeal is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the claimed disabilities on appeal. Attempts to obtain such records should be documented in the claim file. If identified records could not be obtained, this should be noted in the claim file. 2. After completing the above, schedule the Veteran for the following VA examinations: (a) A VA examination to address the etiology of his claimed heart disability. The examiner must identify all currently diagnosed heart disabilities. For each diagnosed disability, the examiner should provide an opinion addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability was caused by his active duty service or, if preexisting service, was aggravated therein. The examiner is asked to specifically address whether each diagnosed heart disability is at least as likely as not (i.e., a 50 percent or greater probability) caused by his service, including exposure to herbicides or, if preexisting service, was aggravated therein. In addition, the examiner is asked to specifically address the August 1967 service treatment record noting palpitation or pounding heart prior to entering service. (b) A VA examination to address the current level of severity of his bilateral hearing loss disability. All needed tests should be conducted and the examination should include an interview of the Veteran. For all examinations, the examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. A comprehensive report must be provided and include complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs