Citation Nr: 20007389 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 17-63 200 DATE: January 30, 2020 ORDER Entitlement to an effective date earlier than July 28, 2016, for the grant of nonservice-connected pension is denied. Entitlement to service connection for a digestive disorder (claimed as digestive and stomach problems) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to nonservice-connected pension was received on July 28, 2016. 2. The evidence is at least in equipoise as to whether the Veteran’s digestive disorder is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to July 28, 2016, for the award of nonservice-connected pension have not been met. 38 U.S.C. §§ 5110, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400. 2. The criteria for service connection for a digestive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 1980 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially filed a claim for service connection for an acquired psychiatric disorder and a digestive disorder in October 2009 which was denied by the RO in an August 2010 rating decision. However, within a year of the August 2010 rating decision, new and material evidence was received in the form of a statement from the Veteran in which he described an in-service stressor and reported that he has experienced digestive issues since service. Thus, the Board finds that the August 2010 rating decision did not become final. 38 C.F.R. § 3.156(b). Accordingly, the claims on appeal are properly characterized as original claims for service connection. The claims of entitlement to service connection for posttraumatic stress disorder (PTSD) and acid indigestion have been recharacterized as one for an acquired psychiatric disorder and a digestive disorder respectively. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additional VA treatment records and private treatment records obtained by VA were received after the most recent statement of the case in October 2017. As the records are not pertinent to the issue being denied herein, the Board finds no prejudice to the Veteran in proceeding with a decision without obtaining a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. 1. Entitlement to an effective date earlier than July 28, 2016, for the grant of nonservice-connected pension. The Veteran contends that he is entitled to an effective date earlier than July 28, 2016, for the award of nonservice-connected pension. Specifically, he contends that he is entitled to an effective date of October 1, 2015. For the reasons that follow, the Board finds that an earlier effective date is not warranted. Generally, the effective date of an evaluation and award of pension will 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. In claims for pension benefits received on or after October 1, 1984, the effective date of an award of disability pension is the date of receipt of the claim. 38 C.F.R. § 3.400 (b)(1)(ii). An exception to this general rule provides that if, within one year from the date on which the veteran first became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran’s own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the disability pension may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim. For the purposes of this subparagraph, the presumptive provisions of 38 C.F.R. § 3.342(a) do not apply. 38 C.F.R. § 3.400 (b)(1)(ii)(B). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,600 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. Inasmuch the current claim was filed after such date, the amendments are applicable to the Veteran’s appeal. The amended regulations allow a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives a complete claim form within one year. 38 C.F.R. § 3.155(b). If submitted in writing, the intent to file must be on a standardized form. Id. Prior to March 24, 2015, a claim was “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). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski, 23 Vet. App. at 84; MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). 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. 38 C.F.R. § 3.155 (a). The term ‘date entitlement arose’ is the date when the claimant met the requirements for the benefits sought on a facts-found basis. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Turning to the evidence of record, the Veteran filed a formal claim for nonservice-connected pension on July 28, 2016, the current effective date of the award. The record shows that the Veteran met the requirements for nonservice-connected pension on October 1, 2015. See July 2016 VA 21-527EZ, Fully Development Claim (Pension); December 2017 substantive appeal. The Veteran contends that the proper effective date is October 1, 2015, the date entitlement arose. Essentially, he contends that his September 2010 Statement in Support of Claim, which was construed as a claim for service connection for his psychiatric condition, should also have been construed as a claim for nonservice-connected pension, particularly in light of the fact that his psychiatric disability was the basis for the grant of pension benefits. See December 2017 substantive appeal. Thus, the Veteran contends that because his September 2010 statement was a claim for pension benefits, the proper effective date is the date entitlement arose because it is the later of the two. While the Board understands the Veteran’s contention, it finds that there was no formal or informal claim for nonservice-connected pension benefits prior to July 28, 2016. The September 2010 statement cannot reasonably be construed as an informal claim for nonservice-connected pension benefits. In this regard, the September 2010 statement clearly stated that the Veteran was “requesting a reconsideration of service connection for PTSD[.]” There was no mention that the Veteran was seeking nonservice-connected pension benefits. The Board acknowledges that under 38 C.F.R. § 3.151, a claim by a veteran for compensation may be considered a claim for pension; and a claim by a veteran for pension may be considered a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. However, in Stewart v. Brown, 10 Vet. App. 15 (1997), which the Veteran cites to in support of his contention, the United States Court of Appeals for Veterans Claims explained that the phrase “may be considered” in 38 C.F.R. § 3.151(a) is discretionary rather than mandatory, and further clarified that VA should consider a veteran’s claim for pension as a claim for compensation where VA is on notice that the appellant has a well-supported claim and might be eligible for either benefit. In this case, the September 2010 claim did not put VA on notice that the Veteran might be eligible for pension benefits. The September 2010 statement did not mention pension benefits in any way and there was no indication of an inability to work due to physical or mental disabilities, the underlying component of pension benefits. Instead, the Veteran explicitly indicated that he was seeking service connection for PTSD. Although the benefit sought need not be specific, see Servello, 3 Vet. App. at 199, it must be identified, see Stewart, 10 Vet. App. at 18. Further, although VA must interpret a claimant’s submissions broadly, it is not required to conjure up issues not raised by claimant, nor anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, 12 Vet. App. at 35; Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). In this case, nonservice-connected pension was not identified as the benefit sought in the September 2010 claim. Moreover, there is nothing on the face of the September 2010 claim that could have put VA on notice that the Veteran was eligible for pension benefits. As such, the Board cannot reasonably construe the September 2010 statement as an informal claim for nonservice-connected pension benefits. The same analysis is true for the Veteran’s October 2009 claim. See VA 21-526 Veterans Application for Compensation or Pension. The Veteran only circled “compensation” in the section asking what type of benefits the Veteran was applying for. There also was no indication of an inability to work due to physical or mental disabilities. There is no other communication in the Veteran’s claims file that could be construed as a formal or informal claim for pension benefits. The Veteran did not express an intent to seek pension benefits until he filed his formal claim in July 2016. In addition, there is no indication in the record that the Veteran is entitled to application of the effective date exception provided in 38 C.F.R. § 3.400 (b)(1)(ii)(B). Specifically, the Veteran has not asserted, and the record does not reflect, that his disability was so incapacitating that it prevented him from filing a disability pension claim for at least the first thirty days immediately after becoming permanently and totally disabled. In sum, the Board finds that the proper effective date is July 28, 2016, the date VA received the Veteran’s claim for pension benefits. This is the Veteran’s currently assigned effective date. Accordingly, there is no entitlement under the law to the benefit sought and the claim must be denied as a matter of law. 2. Entitlement to service connection for a digestive disorder. The Veteran contends that his current digestive disorder is related to service. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). The Veteran’s record shows that he served in Southwest Asia from August 1990 to February 1991. As such, the Veteran is considered a Persian Gulf War veteran. However, the Veteran’s current condition, GERD, cannot be considered a medically unexplained chronic multisymptom illness (MUCMI) under 38 C.F.R. § 3.317, and therefore, he is not entitled to service connection for GERD on a presumptive basis. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). Additionally, 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder pre-existed service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As an initial matter, the Board notes that there is evidence that the Veteran may have had a gastrointestinal condition prior to service entrance. A March 1992 STR notes that the Veteran had a history of stomach symptoms and had been given a diagnosis of peptic ulcer disease prior to entering active duty. However, the evidence of record shows that the Veteran has a current diagnosis of acid indigestion/GERD, not peptic ulcer disease. There also is no evidence that the Veteran has had any ulcers during the course of this claim. Thus, the Veteran is presumably seeking service connection for his current condition and not peptic ulcers. There is no evidence of record indicating that the Veteran’s current acid indigestion/GERD preexisted his active military service. Accordingly, the Board finds that there is not clear and unmistakable evidence that the Veteran’s current digestive disorder preexisted service and thus, the presumption of soundness at service entrance is not rebutted. When the presumption of soundness is not rebutted, the case converts to one for direct service connection. See Wagner, 370 F.3d at 1096. The evidence of record shows diagnoses of acid indigestion and GERD. See May 2010 VA examination; VA treatment records. Accordingly, the first element of service connection has been met. A January 1985 STR shows a complaint of chronic stomach pain with documented ulcer disease in 1980. The January 1985 STR also notes a complaint of an ulcer in the abdominal region. A contemporaneous abdominal series did not show any suspicious fluid, gas, or calcific densities to suggest the presence of an abdominal illness. A March 1992 STR shows a complaint of upper abdominal pain and nausea. The treating provider noted “prob GERD” and reported that an “antireflux prescription was discussed/written.” No Report of Medical Examination or Report of Medical History at separation is of record. The Veteran has generally contended that the symptoms experienced in service have continued since. See September 2010 Statement in Support of Claim. The Veteran underwent a VA examination for his digestive disorder in May 2010. The examiner opined that the Veteran’s digestive disorder was less likely than not related to the Veteran’s military service. The examiner explained that the Veteran was diagnosed with acid indigestion approximately 6-12 months prior, and while the Veteran was seen in service in 1985 for “chronic stomach pain[,]” there was no evidence of periodic treatment for the claimed condition. However, in formulating his opinion, it does not appear that the examiner considered the March 1992 STR that showed a complaint of epigastric pain and noted “prob GERD.” Accordingly, the opinion is afforded limited probative weight. In light of the fact that: (1) the Veteran currently has acid indigestion/GERD; (2) probable GERD was noted in service; (3) the Veteran was prescribed an antireflux medication in service; (4) the Veteran competently and credibly reports symptoms since service; and (5) the limited probative weight assigned to the May 2010 opinion, the Board will resolve all reasonable doubt in favor of the Veteran and find that service connection for a digestive disorder is warranted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder. The Veteran asserts that he has an acquired psychiatric disorder related to service. Specifically, he contends that it is related to witnessing a Humvee explosion in 1990 and his general assignment in Saudi Arabia during which he feared for his life and wellbeing. See September 2010 Statement in Support of Claim; July 2016 VA examination. The Veteran underwent a VA examination in July 2016. At the examination, the VA examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD. Diagnoses of cocaine use disorder and other specified depressive disorder were provided, which the examiner opined were less likely than not related to service. An October 2015 VA treatment record shows a diagnosis of adjustment disorder in addition to cocaine use disorder. A June 2016 VA treatment record shows a diagnosis of other trauma and stressor related disorder. Subsequent to the July 2016 VA examination, a June 2017 VA treatment record shows a diagnosis of anxiety disorder and unspecified trauma and stressor related disorder. A June 2018 private treatment record shows a diagnosis of PTSD. The July 2016 VA opinion does not address the other diagnosed psychiatric disorders of record. Additionally, the June 2018 private treatment record indicates that the Veteran may now have been diagnosed with PTSD. In light of the foregoing, a new VA examination and opinion which discusses all of the noted psychiatric diagnoses and their relationship, if any, to military service should be obtained on remand. Additionally, the RO should attempt to corroborate the Veteran’s reported stressor involving a Humvee explosion in 1990. Furthermore, the Board observes that the issue on appeal was last adjudicated in an October 2017 SOC. The appeal was certified and transferred to the Board in December 2018. However, as noted above, a relevant private treatment record obtained by VA was added to the claims file in September 2018, prior to certification to the Board in July. A supplemental statement of the case (SSOC) was not provided prior to certification to the Board. Where evidence is submitted to the RO prior to certification of the appeal to the Board, the RO must issue an SSOC; the governing regulations do not include a waiver provision. 38 C.F.R. §§ 19.31, 19.37. It is also noted that following certification to the Board, any additional evidence received must be referred to the AOJ for initial review, unless the claimant or his representative waives this review right or when the benefit being sought is allowed in full by the Board. 38 C.F.R. § 20.1304 (c). Where the substantive appeal was received on or after February 2, 2013, Section 501 of the Camp Lejeune Act of 2012 provides an automatic waiver of evidence submitted by a Veteran or his or her representative with or after a Substantive Appeal received on or after February 2, 2013. See 38 U.S.C. § 7105(e)(1); 38 C.F.R. § 20.1304(c). The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran’s in-service stressors. If more details are needed, contact the Veteran to request the information. 2. After the Veteran’s reported stressors have been developed, schedule a psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder. A copy of this Remand must be provided to the examiner. (a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b) For all other psychiatric disorders diagnosed, including other/unspecified trauma-stressor related disorder, adjustment disorder, and anxiety disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, disease, or event as described the Veteran. (Continued on the next page)   A fully-explained rationale must be provided. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.