Citation Nr: 20026491 Decision Date: 04/16/20 Archive Date: 04/16/20 DOCKET NO. 19-18 552 DATE: April 16, 2020 ORDER Service connection for tinnitus is granted. Entitlement to an earlier effective date than November 15, 2001, for the 20 percent increased rating award for hepatitis C is dismissed. Entitlement to an earlier effective date than August 11, 2015, for the award of service connection for lumbar osteoarthritis with IVDS is dismissed. Entitlement to an earlier effective date than February 2, 2016, for grant of service connection for posttraumatic stress disorder is denied. REMANDED Whether new and material evidence was received as sufficient to reopen a claim for entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a stomach condition, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for rhinitis, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for sinusitis, to include as secondary to a service-connected disability is remanded. Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. Entitlement to a rating in excess of 20 percent for hepatitis C, effective November 15, 2001, is remanded. Entitlement to a rating in excess of 40 percent for lumbar osteoarthritis with IVDS is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus is related to service. 2. The increased rating award of 20 percent for hepatitis C became effective November 15, 2001, which is the date the evidence first showed an increased worsening of the disability. 3. The award of service connection for lumbar osteoarthritis with IVDS became effective August 11, 2015, which is the date VA received the Veteran’s claim. 4. The award of service connection for PTSD became effective February 2, 2016, which is the date VA received the Veteran’s claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an earlier effective date than November 15, 2001, for the 20 percent increased rating award for hepatitis C have not been met. 38 U.S.C. § 7105; 38 C.F.R. § 3.400(b)(2). 3. The criteria for an earlier effective date than August 11, 2015, for the award of service connection for lumbar osteoarthritis with IVDS have not been met. 38 U.S.C. § 7105; 38 C.F.R. § 3.400(b)(2). 4. The criteria for an earlier effective date than February 2, 2016, for the award of service connection for PTSD have not been met. 38 U.S.C. § 7105; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from August 1983 to June 1986 and from April 1987 to October 1988. The Board has taken jurisdiction over the issues of entitlement to a rating in excess of 40 percent for lumbar osteoarthritis with IVDS, entitlement to an earlier effective date for the award of service connection for lumbar osteoarthritis with IVDS, and entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Accordingly, these issues have been merged with the appeal for the other listed issues that were certified to the Board in July 2019. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume 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 Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019). The Court has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 1. New and material evidence is not required to reopen a claim for entitlement to service connection for a left ankle disability. The Board notes that the Veteran’s claim for entitlement to service connection for a left ankle disability that is currently on appeal was previously adjudicated in as a claim for whether new and material evidence has been received to reopen the claim. In a July 1987 rating decision, the RO denied service connection for manifestations of a twisted left ankle. The Veteran did not appeal that decision, and he attempted to reopen his claim in September 2016, which was denied in a December 2016 rating decision. As such, the Veteran would typically be required to submit new and material evidence to reopen this claim for service connection. See 38 C.F.R. § 3.156(a). However, after the April 1987 rating decision was issued, additional service treatment records were received due to a second period of active service that began in April 1987 and continued until October 1988. These records included service treatment records that may be relevant to the Veteran’s claim. In such an instance, where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156(c). In essence, the finality of any previous decision is vitiated by the association of additional, pertinent service department records, and the claim must be reconsidered. In other words, the submission of new and material evidence is not required in this case for VA to consider the claim for entitlement to service connection for a left ankle disability on the merits. 2. Entitlement to service connection for tinnitus. The Veteran asserts that he developed tinnitus due to service. The Board concludes that the Veteran has a current tinnitus disability that is related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A February 2003 VA examination shows the Veteran has a current diagnosis of tinnitus. Thus, the question becomes whether the current disability is related to service. On this question there is a probative opinion in favor of the claim. The evidence in favor of the claim includes a February 2003 VA examiner’s opinion that the Veteran’s tinnitus is at least as likely as not related to service. The rationale was that the Veteran was exposed to airplanes and turbine engine noises during service that caused his tinnitus. The Veteran endorsed symptoms of tinnitus “as long as he can remember.” Upon review of the record, the Board finds the preponderance of the evidence to be in favor of showing the Veteran’s current tinnitus is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlements to an earlier effective date than November 15, 2001 for a 20 percent rating award for hepatitis C and an earlier effective date than August 11, 2015, for the award of service connection for lumbar osteoarthritis with IVDS. The Veteran contends that earlier effective dates are warranted for the 20 percent increased rating award for hepatitis C, effective November 15, 2001, and the award of service connection for lumbar osteoarthritis with IVDS rated at 40 percent, effective August 11, 2015. As background, a March 2002 rating decision granted a 20 percent rating increase for hepatitis C, effective November 15, 2001. The Veteran filed another claim for an increased rating that was received by VA on October 24, 2002. An April 2003 rating decision continued the 20 percent rating for hepatitis C. The Veteran did not appeal this rating or the effective date. A November 2015 rating decision granted service connection for lumbar osteoarthritis with IVDS and assigned a 40 percent rating, effective August 11, 2015. He did not appeal this rating or the effective date. The Veteran’s current claim for an increased rating for hepatitis C was received by VA on September 2, 2016. The claim for an increased rating for lumbar osteoarthritis with IVDS was received by VA on January 17, 2017. December 2016 and May 2017 rating decisions continued the 20 percent rating for hepatitis C and the 40 percent rating for lumbar osteoarthritis with IVDS. A December 2017 notice of disagreement appealed the ratings and effective dates for hepatitis C and lumbar osteoarthritis with IVDS. The Veteran appealed the continued rating assignments and their effective dates for hepatitis C and lumbar osteoarthritis with IVDS by checking the appropriate boxes on the NOD form, but he did not provide any further explanation regarding what he thought should be the appropriate effective date for any of the ratings. A June 14, 2019 statement of the case (SOC) adjudicated the earlier effective date claim for hepatitis C, and an August 6, 2019 SOC adjudicated the claim for an earlier effective date for the award of service connection for lumbar osteoarthritis with IVDS. The Veteran’s June 2019 and September 2019 VA-9 substantive appeals included the earlier effective date claims for these disabilities without further explanation or allegation of clear and unmistakable error. The Board notes that the Veteran is represented by the above private attorney, who continued the appeals for the freestanding earlier effective date claims despite there not being standing under the law. The Court has held that, once there is a relevant final decision on an issue, there cannot be a “freestanding claim” for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). In other words, a claimant is not entitled to subsequently make an earlier effective date claim after a prior final denial was not properly appealed. In Rudd, the Court held that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed VA decision. See Rudd, 20 Vet. App. at 299-300. In sum, because the Veteran did not appeal the March 2004 rating decision that denied a rating in excess of 20 percent for hepatitis C and the November 2015 rating decision that granted service connection for lumbar osteoarthritis with IVDS within a year of issuance, these decisions became final. The subsequent claim requesting earlier effective dates was a freestanding earlier effective date claim that must be dismissed. DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (“Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded”). Entitlement to an Earlier Effective Date for PTSD The Veteran seeks an effective date prior to February 2, 2016 for the grant of service connection for PTSD. 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.A. § 5110 ; 38 C.F.R. § 3.400 (b)(2)(i). On February 2, 2016, the Veteran submitted an application for compensation for a psychiatric disorder. Thus, the earliest effective date for the award of service connection is February 2, 2016. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q) and (r). The Board has reviewed the record to determine whether an informal claim of service connection for a psychiatric disorder was filed prior to February 2, 2016, and finds that no document was received that can be construed as an informal or formal claim for compensation benefits for a psychiatric disorder. See 38 C.F.R. §§ 3.151, 3.155; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for effective date earlier than the date on which the claim was received impermissibly attempts to vitiate the rule of finality). To the extent to which the Veteran seeks and effective date prior to February 2, 2016 as he began experiencing symptoms prior to that date, the Board notes that it is not the presence of a disability that controls. The Court has long held that the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (“[M]ere receipt of medical records cannot be construed as an informal claim.”); Brannon v. West, 12 Vet. App. 32, 35 (1998) (“[T]he Board is not required to conjure up issues that were not raised by the appellant.”). Similarly, while records of medical treatment can constitute an informal claim for increase of an already service-connected condition, they cannot serve as informal claims for conditions which have not been service-connected. See 38 C.F.R. § 3.157; Lalonde v. West, 12 Vet. App. 377, 382 (1999). While the Board is sympathetic to the Veteran’s claim, under the applicable regulations, February 2, 2016 is the earliest date for the award of service connection for PTSD. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Because the preponderance of the evidence is against the claim for an earlier effective date, the benefit of the doubt doctrine is not for application and the appeal is denied. See Gilbert, 1 Vet. App. at 53-54. REASONS FOR REMAND 1. Whether new and material evidence was received as sufficient to reopen a claim for entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlements to service connection for a stomach condition, rhinitis, sinusitis, a left ankle disability, and a left knee disability are remanded. 3. Entitlements to an initial rating in excess of 70 percent for PTSD, a rating in excess of 20 percent for hepatitis C, effective November 15, 2001, a rating in excess of 40 percent for lumbar osteoarthritis with IVDS, effective August 11, 2015, and a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities are remanded. June 2019 VA treatment records show the Veteran applied for social security disability benefits and was scheduled to have a hearing in October 2019. A remand is required to allow VA to request these outstanding and relevant records. The Veteran was treated during service in January 1988 for left knee and left ankle pain. The Board cannot make a fully-informed decision on these issues disability because no VA examiner has opined whether the Veteran has a current left knee and left ankle disability that are related to service or a service-connected disability. The Board cannot make a fully-informed decision on the issues of rhinitis, sinusitis, and a stomach condition because no VA examiner has opined whether any of these disabilities are related to service or a service-connected disability, to include residuals of hepatitis C. The Veteran endorsed increased worsening of his service-connected PTSD, hepatitis C, and lumbar osteoarthritis with IVDS in September 2019 statements. However, the Board is without the expertise necessary to determine the extent of worsened symptoms exhibited by the Veteran’s service-connected disabilities. “VA regulations specifically require the performance of a new medical examination ... [when] ‘evidence indicated there has been a material change in a disability or that the current rating may be incorrect.’” Caffrey v. Brown, 6 Vet. App. 377, 381 (quoting 38 C.F.R. § 3.327(a)) (1994). As there is evidence indicating that the Veteran’s conditions have worsened since his last VA examinations of record, the Board finds that the Veteran’s claim should be remanded to provide him with updated examinations to accurately assess the current condition of these disabilities. In claims for a rating increase, it is first and foremost a priority to ensure that the most current assessment of the service-connected disability picture is of record. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board notes that the issue of entitlement to a total disability rating based on individual unemployability cannot be adjudicated until the service connection and rating issues are addressed because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left ankle disability. The examiner must opine on the following: (a.) whether it is at least as likely as not related to an in-service injury, event, or disease. (b.) whether it at least as likely as not (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) whether it is at least as likely as not proximately due to a service-connected disability. (d.) whether it is at least as likely as not aggravated beyond its natural progression by a service-connected disability. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disability. The examiner must opine on the following: (a.) whether it is at least as likely as not related to an in-service injury, event, or disease. (b.) whether it at least as likely as not (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) whether it is at least as likely as not proximately due to a service-connected disability. (d.) whether it is at least as likely as not aggravated beyond its natural progression by a service-connected disability. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any rhinitis and sinusitis disability. The examiner must opine on the following: (a.) whether it is at least as likely as not related to an in-service injury, event, or disease. (b.) whether it is at least as likely as not proximately due to a service-connected disability, to include hepatitis C. (c.) whether it is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include hepatitis C. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any stomach condition. The examiner must opine on the following: (a.) whether it is at least as likely as not related to an in-service injury, event, or disease. (b.) whether it is at least as likely as not proximately due to a service-connected disability. (c.) whether it is at least as likely as not aggravated beyond its natural progression by a service-connected disability. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hepatitis C. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar osteoarthritis with IVDS. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.