Citation Nr: 1808389	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  13-03 676A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include depression.

2.  Entitlement to an effective date earlier than May 27, 2010 for the award of the grant of service connection for bilateral hearing loss.

3.  Entitlement to an effective date earlier than May 27, 2010 for the award of the grant of service connection for tinnitus.  


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Veteran and C.G.
ATTORNEY FOR THE BOARD

Journet Shaw, Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from December 1965 to December 1967.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in April 2011 and October 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

The Veteran testified before a Decision Review Officer at an April 2015 RO hearing.  The Veteran and C.G. testified before the undersigned Veterans Law Judge at a September 2017 videoconference hearing.  Transcripts of these hearings are of record.

The issue of service connection for an acquired psychiatric disorder, to include depression, as characterized on the title page, has been framed to include all psychiatric disorders that also have been claimed and diagnosed, but not previously denied in prior rating decisions.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental health disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

At the Veteran's September 2017 Board hearing, there was confusion as to whether the Veteran had previously filed a claim for a psychiatric disorder.  A review of the record shows that in December 1995, the Veteran had previously claimed service connection for a "mental illness;" however that claim was adjudicated as a petition to reopen a previously denied claim for service connection for a head injury.  Because no evidence of an in-service head injury was presented, the service connection claim for a head injury was not reopened.  Again, in February 1999, the Veteran filed a claim for service connection for "physical exhaustion and mental illness," which was also treated as a petition to reopen his service connection claim for a head injury.  Finding that no new and material evidence had been presented, the service connection claim for a head injury was not reopened.  

The record shows that when the Veteran filed his original claim for a head injury in September 1993, claimed as "head banged," he asserted that he had sustained a head injury while serving in Germany.  No evidence of a psychiatric disorder was considered.  When the Veteran subsequently filed claims for service connection for a mental illness, which were treated as petitions to reopen a claim for service connection for a head injury, the RO did consider evidence of the Veteran's treatment and diagnosis for a psychiatric disorder.  Nevertheless, the RO did not adjudicate whether the Veteran was entitled to service connection for a psychiatric disorder.  Rather, the RO only adjudicated whether there was new and material evidence to reopen the service connection claim for a head injury.  The Veteran's current claim for depression, and recharacterized as a claim for an acquired psychiatric disorder, to include depression, was not previously considered in the RO's prior final rating decisions; therefore, it would be prejudicial to require the submission of new and material evidence for depression, since the claim for an acquired psychiatric disorder, to include depression, is an original and independent claim based on distinct factual bases that were not previously considered and adjudicated by the RO.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199 (2009).

The issue of entitlement to service connection for an acquired psychiatric disorder, to include depression, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On May 27, 2010, the RO received the Veteran's claim for service connection for bilateral hearing loss; there was no communication prior to May 27, 2010 that could be construed as an informal or formal claim of entitlement to service connection for bilateral hearing.

2.  On May 27, 2010, the RO received the Veteran's claim for service connection for tinnitus; there was no communication prior to May 27, 2010 that could be construed as an informal or formal claim of entitlement to service connection for tinnitus.  


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than May 27, 2010 for the award of the grant of service connection for bilateral hearing loss have not been met.  38 U.S.C. § 5110 (2010); 38 C.F.R. § 3.400 (2017).

2.  The criteria for an effective date earlier than May 27, 2010 for the award of the grant of service connection for tinnitus have not been met.  38 U.S.C. § 5110 (2010); 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C. § 7104 (2012); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  Id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Id.   

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Id.  

Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012);  38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017).

Neither the Veteran nor his/her representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.");  Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Earlier Effective Date

Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  The effective date of an award of disability compensation based on new and material evidence under 38 C.F.R. § 3.156 (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2).  Similarly, the effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(r). 

A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier.  38 C.F.R. § 3.160(d) (2014).  A reopened claim is any application for a benefit received after final disallowance of an earlier claim.  38 C.F.R. § 3.160(e) (2014).

VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R § 3.157.  See Fed. Reg. 57,660, 57,695 (Sept. 25. 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply.  

The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA.  38 C.F.R. § 3.1(r) (2014).  A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.  38 C.F.R. §§ 3.1(p) (2014); 3.155 (2014).  The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim.  Such informal claim must identify the benefit sought.  Id.  When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim.

Further, under 38 C.F.R. § 3.157(b)(1) (2014), an informal claim may consist of a VA report of examination or hospitalization.  Under this regulatory provision, the date of the VA outpatient examination or hospital admission will be accepted as the date of receipt of a claim if such a report relates to examination or treatment of a disability for which service connection has previously been established.

On May 27, 2010, the Veteran filed an informal claim for service connection for bilateral hearing loss and tinnitus.  In an April 2011 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus, effective May 27, 2010.  The Veteran disagreed with the decision and appealed for an earlier effective date.  The Veteran is requesting an effective that goes back to the late 1970's, when he asserts that he had originally filed his claims for service connection for bilateral hearing loss and tinnitus.  

A careful review of the records reveals that in October 1974, the Veteran submitted a claim for "psychosis and any other disabilities found in service records."  The Board notes that the claim was adjudicated as a claim for non-service-connected pension benefits; it was granted for his schizophrenia.  

Even with taking a liberal reading of the Veteran's service treatment records, which documents normal hearing bilaterally and no complaints of ringing in the ears or hearing problems, the Board finds no intent on the part of the Veteran to file a claim for benefits for bilateral hearing loss or tinnitus.  See 38 C.F.R. § 3.155.  Further, the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit in question.  Brannon v. West, 12 Vet. App. 32, 34-5 (1998).  While the Board must interpret the Veteran's submissions broadly, the Board is not required to conjure up issues that were not raised by the Veteran.  Id.  Thus, the Veteran's October 1974 claim for "any other disabilities found in service records" does not represent an informal claim for bilateral hearing loss or tinnitus.  

There was no communication, either formal or informal, prior to May 27, 2010 that constitutes as a claim for service connection for bilateral hearing loss or tinnitus, and the Veteran has not otherwise established that there exists any such claim.  The Board is sympathetic to the Veteran's assertion that he recalls filing a claim in the 1970's; however, the October 1974 claim does not meet the requirements for an application for benefits under VA regulations, as it is not specific enough to identify bilateral hearing loss and tinnitus as the disabilities for which compensation benefits are being sought.  According to the applicable regulation, the effective date of the date of the grant of service connection for bilateral hearing loss and tinnitus can be no earlier than May 27, 2010, the date of the receipt of the claim, which was the date VA first received any communication indicating an intent to apply for service connection for bilateral hearing loss and tinnitus.  38 C.F.R. § 3.400(b)(2)(i).

The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority.  The Board finds that the preponderance of the evidence is against the assignment of an effective date for the grant of service connection for bilateral hearing loss and tinnitus earlier than May 27, 2010.  Thus, since the Board finds no legal basis for assignment of any earlier effective date, the claim must be denied.  38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an effective date earlier than May 27, 2010 for the award of the grant of service connection for bilateral hearing loss is denied.  

Entitlement to an effective date earlier than May 27, 2010 for the award of the grant of service connection for tinnitus is denied.  


REMAND

Unfortunately, a remand is required in this case for the issue remaining on appeal.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration.

The Veteran is seeking service connection for a psychiatric disorder, specifically depression.  At his April 2015 RO hearing, the Veteran testified that he underwent outpatient treatment in 1967 at the Frankfurt Army Regional Medical Center in Germany.  The claims file does not currently include any treatment records from that facility.  Attempts to locate and associate with the claims file the Veteran's hospital records from the Frankfurt Army Regional Medical Center should be conducted on remand. 

The Board observes that the Veteran has not been afforded a VA examination for his acquired psychiatric disorder.  The Veteran has asserted that he was treated for depression during service.  Moreover, within a few years of his discharge, the record contains continuous treatment for psychiatric disorders, including schizophrenia and delusional disorder from 1974 to 1996.  The evidence also shows that he has a current diagnosis for depression.  See August 2012 private treatment record and December 2012 VA treatment record.  However, the record does not include an etiological opinion, and the available competent evidence is insufficient to decide the claim.  As the evidence suggests that the Veteran's current mental health disorder may be related to his reported in-service mental health symptoms, a remand is required to provide a VA examination to determine its etiology.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following actions:

1.  Request any of the Veteran's outstanding service treatment records that are not currently of record, including treatment records from 1967 from the Frankfurt Army Regional Medical Center.   

2.  Obtain all of the Veteran's outstanding mental health treatment records for his acquired psychiatric disorder that are not currently of record.

3.  After completing the above, to the extent possible, schedule the Veteran for a VA psychiatric examination by an appropriately qualified examiner.  Provide the examiner with the claims file, including a copy of this REMAND, for review.  

After a review of the claims file, the examiner should respond to the following:

Is it at least as likely as not (50 percent probability or greater) that any of the Veteran's diagnosed mental health disorders had their onset during active duty service, or were otherwise etiologically related to service?

A complete rationale with discussion of medical literature for any opinion expressed must be provided.  If an opinion cannot be expressed without resort to speculation, discuss why this is the case.  

4.  After ensuring compliance with the above, readjudicate the claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims 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).



______________________________________________
LESLEY A. REIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs