Citation Nr: 21061378 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-11 480 DATE: October 1, 2021 ORDER The Board, having determined that new and relevant evidence has not been received, the petition to reopen a claim for service connection for right knee disorder is denied. Entitlement to a rating in excess of 50 percent for unspecified anxiety disorder to include unspecified neurocognitive disorder is denied. Entitlement to an effective date earlier than November 5, 2015 for the grant of service connection for unspecified anxiety disorder to include unspecified neurocognitive disorder is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The claim for service connection for a right knee disorder was denied in a December 1997 rating decision that was not appealed. 2. The evidence received since the December 1979 rating decision is not new and relevant and does not raise the possibility of substantiating the claim. 3. The Veteran's unspecified anxiety disorder to include unspecified neurocognitive disorder symptoms has been manifested by anxiety, chronic sleep impairment, mild memory loss, impairment of short and long term memory, and spatial disorientation. 4. A formal claim for service connection for unspecified anxiety disorder to include unspecified neurocognitive disorder was not received by VA until November 5, 2015. CONCLUSIONS OF LAW 1. The criteria for whether new and relevant evidence has been received to reopen a claim for service connection for right knee disorder have not been met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 2. The criteria for a rating in excess of 50 percent for unspecified anxiety disorder to include unspecified neurocognitive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413. 3. The criteria for an effective date earlier than November 5, 2015 for the grant of service connection for unspecified anxiety disorder to include unspecified neurocognitive disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to October 1970 to include service in the Republic of Vietnam. In a March 2017 substantive appeal, the Veteran requested a Board hearing and was scheduled to appear for that hearing in February 2020. Subsequently, the Veteran was unable to attend that hearing and a new hearing was rescheduled for May 2021. In a May 2021 Statement in Support of Claim, the Veteran cancelled his hearing request. Thus, his Board hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e). New and Material Evidence A claim which has been finally denied in an unappealed rating decision generally may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists when new and material evidence is secured with respect to a claim which has been disallowed, in which case the Secretary shall reopen the claim and review the prior disposition. 38 U.S.C. § 5108. 1. Whether new and relevant evidence has been received to reopen a claim for service connection for right knee disorder The AOJ initially denied the Veteran's service connection claim for a right knee disorder in a December 1997 rating decision. At that time, the relevant evidence of record consisted of the Veteran's service treatment records (STRs), VA examination, and private treatment notes. Upon review of this evidence, the AOJ denied the claim on the basis there was no nexus to service. The rationale was that there was no record of a chronic knee disability from the time of the in-service injury until 1996, when the Veteran injured his knee playing basketball. The Veteran was notified of this decision and of his appellate rights but did not file a timely notice of disagreement (NOD) or submit new and material evidence within one year of the December 1997 rating decision. Therefore, the December 1997 VA rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Evidence received since the December 1997 rating decision includes a private physician's statement attesting to the fact the Veteran has a right knee disorder that he gets treatment for. The statement does not provide a nexus between the current knee disorder and the in-service injury. The statement while new is not relevant to the issue at hand. Consequently, as no new and material evidence has been presented, this claim is not reopened. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. 2. Entitlement to a rating in excess of 50 percent for unspecified anxiety disorder to include unspecified neurocognitive disorder The Veteran contends that a rating in excess of 50 percent is warranted for his psychiatric disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 . The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1 . In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1 , 4.2, 4.41 (2018). Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). PTSD is rated using the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 , Diagnostic Code 9411 (2018). A 50 percent rating is warranted for occupational and social impairment with reduced reliability, and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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 ideations; 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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 the activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130 , Diagnostic Code 9413, General Rating Formula for Mental Disorders (2018). In December 2016, the Veteran underwent a VA initial PTSD examination and was diagnosed with unspecified anxiety disorder and unspecified neurocognitive disorder. The examiner stated it was not possible to differentiate what symptoms are attributable to each diagnosis but then proceeded to differentiate the symptoms. Symptoms attributable to unspecified anxiety disorder include excessive worry, indecisiveness and sleep problems, which the Veteran believes are well managed by medication. Symptoms attributable to unspecified neurocognitive disorder includes problems with memory. The examiner stated the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran has a good relationship with his older brother, a fair relationship with his younger brother, has been married for 44 years and said the marriage was a very good relationship. He also reported very good relationships with his children and grandchildren. The Veteran stated he had many close friendships, and he is very involved with his church. Symptoms for VA rating purposes were noted as anxiety, chronic sleep impairment, mild memory loss, impairment of short and long term memory, and spatial disorientation. The Veteran was described as appropriately groomed and his thought process was logical and goal directed. He endorsed symptoms of anxiety and excessive worry, as well as chronic sleep impairment. The Veteran denied a history or suicidal or homicidal ideation. After a review of the evidence, the Board finds that the probative medical evidence of record shows that the frequency, duration, and severity of the Veteran's psychiatric symptoms demonstrate occupational and social impairment with reduced reliability, and productivity. Therefore, a 50 percent rating is warranted for the entire period on appeal. However, the Board finds that the criteria for a rating greater than 50 percent were not met or approximated at any time during the appeal period. The Board finds that the evidence does not show that the psychiatric symptomatology resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. While the Veteran was noted to have spatial disorientation, there was no evidence of 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 the veteran's personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. Socially, the Veteran is very active in his church, has good relationships with his family members, and stated he had many close friendships. Accordingly, the Board finds that the evidence supports the assignment of a 50 percent rating, but not higher, for the Veteran's PTSD disability. The Board finds that the preponderance of the evidence is against the assignment of a higher rating during the appeal period. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an effective date earlier than November 5, 2015 for the grant of service connection for unspecified anxiety disorder to include unspecified neurocognitive disorder The Veteran contends that an earlier effective date is warranted for the grant of service connection for unspecified anxiety disorder. Specifically, the Veteran states that he submitted an intent to file a claim on December 11, 2013 and then submitted the formal claim on December 19, 2013. Under governing law, the effective date for a grant of compensation will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. Id. As relevant herein, a claim or application 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). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400 (a). A review of the record shows that the Veteran submitted a statement indicating his intent to file a claim for VA benefits that was received by VA on December 17, 2013. The Veteran's intent was acknowledged with a letter dated December 19, 2013 letting him know he had one year from the date of the letter to file a formal claim. There was no response to that letter. On November 5, 2015 VA received a statement from the Veteran stating that he had filed an original claim on January 19, 2013 ( the Board believes this date was a typo on the part of the Veteran as the intent to file a claim was not submitted until December 2013). In support of the Veteran's assertion that he filed a formal claim before November 2015 he submitted a completed VA Form 21-526EZ signed and dated December 11, 2013. In an August 2016 statement submitted with the Veteran's notice of disagreement, the Veteran stated that his original request for disability benefits was submitted on January 15, 2014. However, the Veteran's signed and dated VA Form 21-526EZ application was not received by VA until November 5, 2015. In this case the Veteran expressed an intent to file a claim in December 2013. He was provided with the appropriate form for completing his claim, and advised he had one year in which to submit the completed form. He did not do so within one year. Consequently, VA may not accept December 17, 2013 as the date of claim. Although the Veteran submitted a completed claim form in November 2015 that was dated in December 2013, the date of the receipt of that claim controls, and not the date the Veteran wrote on the document itself. Though the Veteran frames the circumstance as VA having sat on his December 2013 claim until November 2015, the record shows that in fact his claim was not completed and submitted until November 2015. The first actual claim for VA purposes seeking service for the disorder was received on November 5. 2015. As the effective date of service connection cannot be earlier than the date entitlement arose or the date of receipt of claim, whichever is later, November 5, 2015 is the effective date of service connection for unspecified anxiety disorder to include unspecified neurocognitive disorder. Because the preponderance of the evidence weighs against assignment of an earlier effective date, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he was exposed to hazardous noise while working on airplane engines without hearing protection. The Veteran's MOS was radio mechanic. The Veteran has reported that he has had a decline in his hearing in and since service. See Notice of Disagreement dated August 15, 2016. In January 2016 the Veteran underwent a VA hearing loss examination. He was diagnosed with bilateral sensorineural hearing loss. The examiner opined it was less likely than not the Veteran's hearing loss was caused by or a result of an event in military service. The rationale provided was that no hearing loss was shown upon entry or at separation and therefore the Veteran's hearing loss is due to aging. The examiner did not offer any explanation regarding the role in-service noise exposure may have played in the Veteran's current bilateral hearing loss other than to state the Veteran's STRs indicated normal hearing at entrance and separation. Unfortunately, the Board finds the January 2016 VA opinion to be inadequate as the examiner relied on a lack of hearing loss while in service as the basis for the opinion. Accordingly, the Board finds a remand is necessary to determine whether the Veteran's in-service noise exposure caused or is related to his current bilateral hearing loss. 2. Entitlement to service connection for tinnitus is remanded. The January 2016 VA examiner stated the Veteran's tinnitus was a result of his hearing loss. As the issue of service connection for bilateral hearing loss is being remanded, the Board finds service connection for tinnitus is inextricably intertwined with service connection for bilateral hearing loss, and thus also is remanded. Harris v. Derwinski, 1Vet. App.180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiology examination to determine the nature and etiology of his bilateral hearing loss. The electronic claims file must be made accessible to and be reviewed by the VA examiner. Audiometric testing should be performed. The examiner is requested to: a) Opine whether it is at least as likely as not (50 percent probability or greater) any diagnosed hearing loss is etiologically related to service. b) Opine whether it is at least as likely as not (50 percent probability or greater) any diagnosed tinnitus is etiologically related to service. 2. Thereafter, readjudicate the claims. If the decision remains adverse to the Veteran, issue the Veteran and his representative a supplemental statement of the case. Thereafter, return the case to the Board, if otherwise in order. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.